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^    TRE-^TISE 


COUNTY  AND  TOWNSHIP 


OFFICERS  OF  IOWA. 


BEING  A  COMPLETE 


OFFICIAL  GUIDE 


CLERKS,  SHERIFFS.  BOARDS  OF  SUPERVISORS,  AUDITORS,  TREASUR- 
ERS, RECORDERS,  CORONERS,  SURVEYORS,  NOTARIES  PUB- 
LIC, AND  TOWNSHIP  TRUSTEES,  CLERKS,  CONSTA- 
BLES. ASSESSORS,  AND  COLLECTORS. 


SHOWING  THEIR 


POWERS,  DUTIES  AND  LIABILITIES, 

WITH   ALL    THE 

FORMS   REQUIRED  IN  THEIR   OFFICIAL  BUSINESS,  AND  AN   APPENDIX   OF  FORMS 

FOR  GENERAL  USE,  ADAPTED  TO  THE  CODE  OF  1873,  AND  AS  AMENDED 

BY   THE   LAWS   OF  THE   LAST  GENERAL  ASSEMBLY. 


By   GEORGE   W.  FIELD, 

COUNSELOR  AT  LAW. 


DES  MOINES: 

MILLS    &    COMPANY,    LAW    PUBLISHERS. 
1875- 


T 

m5 


Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

seventy-five, 

By    mills    &    COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


STERKOTTPED  AND   PRINTED 

BY    MILLS    &    COMPANY, 

DES  MOINES,  IOWA. 


PREFACE. 


A  laro;e  number  of  county  and  township  officers  are  anmially 
installed  into  office,  and  new  duties  and  obligations  are 
imposed  U])on  them,  with  which  they  usually  have  little 
acquaintance. 

The  directions  relating  to  those  duties,  and  the  obligations 
imposed  upon  them,  scattered  through  various  sections  and 
chapters  of  the  Code,  are  many  times  indelinite  and  obscure; 
but  these,  with  casual  consultations  with  attorneys,  in  particular 
cases,  are  generally  the  only  guides  and  sources  of  light  prac- 
tically accessible  to  them. 

Impressed  with  these  facts,  and  the  great  utility  of  some 
more  complete  guide  for  them,  this  volume  has  been  prepared. 

It  will  be  conceded  by  those  competent  to  judge,  that  any- 
tliing  like  an  exhaustive  treatise  in  relation  to  the  duties, 
obligations  and  liabilities  of  any  one  of  several  of  the  officers 
herein  treated  of,  would  form  a  volume  as  large  as  this,  and 
that  such  a  treatment  of  all  of  those  officers  would  swell  tlie 
volume  to  a  size  that  would  be  too  expensive  and  inconvenient 
for  general  use  by  them. 

In  view  of  these  fficts,  it  has  been  the  aim  of  the  author  t<> 
select  and  condense  in  this  volume,  the  most  useful  and  ini])oi'- 
tant  matters  relating  to  those  duties,  obligations  and  lia- 
liilities. 

The  author  entertains  a  hope  that  the  treatise  may  also  l)e 
convenient  and  useful  to   attorneys.     Under  the  pressure  of 


VIII  PKEFACB. 

professional  business,  tliey  will,  perhaps,  accept  the  results  of 
investigations  herein  coi  tained,  and  especially  the  carefully 
])repared  forms,  as  a  g-reat  convenience. 

The  laws  relating  to  the  duties  of  County  Superintendents 
of  common  schools,  with  instructions  and  forms,  are  generally 
furnished  them  by  the  Superintendent  of  Public  Instruction; 
the  laws  relating  to  highways,  and  the  duties  of  road  super- 
visors, with  directions  and  forms  required  by  them,  are  fur- 
inshed  them  under  the  provisions  of  the  statute;  while  the 
excellent  and  exhaustive  treatise  of  Conklin  and  Bissell  on 
the  Powers  and  Duties  of  Justices  of  the  Peace,  furnishes  that 
important  township  officer  with  a  com])lete  guide.  Foi-  these 
reasons  any  consideration  of  them,  has  been  omitted  in  this 
treatise. 

The  author  acknowdedges  his  obligations  to  T.  W.  Suatley, 
cashier  of  the  First  JS'ational  Bank  of  Anamosa,  Iowa,  for  the 
forms  furnished  herein  for  treasurer's  accounts,  and  to  T.  R. 
Eecanbkack,  Esq.,  of  the  Anamosa  Bar,  for  valuable  assistance 
in  the  final  preparation  of  this  volume  for  the  press. 

G.  W.  FIELD. 
Anamosa,  Iowa,  Jan.,  1875. 


CONTENTS. 


PAET  FIRST. 
COUNTY  OFFICERS. 


CHAPTER    I. 

PAGE. 

.     I.     Statutes  relating  to  them  generally 3 

II.     Of  their  election  and  terms 3 

III.  Of  qualifications  for  office 4 

IV.  Of  removal,    suspension  from  office,    deputies,  additional    security, 

discharge  of  sureties,  and  vacancies ,  6 

V.     Fees  and  other  matters 11 

VI.     Of  the  administration  of  oaths 13 

VII.     Of  secureties  and  investments 14 

VIII.     Of  crimes  and  their  punishment 14 

IX.     Evidence 17 

X.     Resistance  to  process  and  suppression   of  riots 18 

CLERK. 

CHAPTER  II. 

I.     His  election,  qualification,  etc 19 

II.     Vacancies,  removal,  suspension,  etc 22 

III.     Deputies 22 

CHAPTER    III. 

I.     Of  the  clerks  duties 2.5 

II.     The  records 27 

III.     Forms  of  record  entries 28 

CHAPTER  IV. 

I.     Oaths  in  court 42 

II.     Forms  of  oaths 42 


CONTENTS. 

CHAPTER  V. 

I.     Other  books  and  records 45 

II.     Other  duties 4a 

CHAPTER  VI. 

I.     His  duty  relating  to  execution 47 

II.  His  duty  relating  to  certiorari 51 

III.  His  duty  relating  to  attachment 52 

IV.  His  duty  relating  to  replevin 54 

V.     His  duty  relating  to  injunction 55 

VI.     His  duty  relating  to  selection  and  summoning  of  jurors 57 

VII.     His  duty  relating  to  depositions 58 

CHAPTER  VII. 

I.     His  duty   relating  to  entering  minutes  on  the  margin  of  mortgage 

records •i4 

II.     His  duty  relating  to  certifying  records 1)5 

III.  His  duty  relating  to  appeals (it! 

IV.  Summary  of  other  duties fi7 

V.     Crimes  and  misdemeanors 70 

VI.     Fees  and  compensation 71 

SHERIFF. 

CHAPTER  VIII. 

I.     The  antiquity  of  the  office,  etc 74 

II.     His  election 75 

III.     Qualification,  deputies,  vacancies,  etc 75 

CHAPTER  IX. 
Of  His  Duties. 

I.     Provisions  of  the  statute 76 

CHAPTER  X. 

I.     Of  the  original  notice 7S 

II.     How  signed  and  served 78 

III.  What  the  return  should  show SI 

IV.  Service  on  corporations 8.S 

V.     Service  on  minors,  prisoners,  etc 85 

VI.     Effect  of  the  return 87 

CHAPTER  XI. 

I.     His  duty  relating  to  service  of  attachment 89 

II.     Provisions  of  the  Code  relating  to  return  on  attachment 91 


CONTENTS.  XI 

III.  Judgment,  application  of  property,  intervention,  etc 91 

IV.  What  the  writ  should  contain 92 

V.     Of  the  service 92 

VI.     Of  garnishment 9R 

VII.     Of  release  of  attached  property 100 

VIII.     Of  perishable  property 104 

IX.     Specific  attachments 100 

X.     Return  of  attachment 107 

CHAPTER  XII. 

Of  the   Process   of  Execution, 

I.     Its  purpose,  etc 110 

II.     Statutory  provisions 110 

III.  Indemnifying  bond  .    .    .    .' 117 

IV.  Stay  of  execution 119 

V.     Property  exempt  from  execution 119 

VI.     Sale  under  execution 127 

VII.     Right  of   redemption 134 

VIII.     Revivor  of  judgments 1.38 

IX.     Proceedings  auxiliary  to  execution 138 

X.     Decisions  relating  to  sheriffs 138 

XI.     Indorsement  of  levy  and  return 140 

CHAPTER    XIII. 

On   Replevin. 

I.     Provisions  of  the  statute 142 

II.     Bond  for  retaining  property 14.S 

III.  Sheriff's  return 144 

IV.  Directions  of  the  statute 145 

CHAPTER  XIV. 

Of  Property  taken  for  Internal  Improvements, 

I.     Provisions  of  the  Code 147 

II.     Manner  of  summoning  appraisers,  etc 150 

CHAPTER   XV. 
Of  the  Foreclosure  of  Chattel  Mortgages. 

I.     Sheriff's  duty  by  statute,  and  the  forms  and  proceedings 154 

CHAPTER   XVI. 
Of  Injunction  Cases. 

I.    SherifFs  duties  in 158 


Xn  CONTENTS. 

CHAPTER    XVII. 

Sui/>a:nas. 

I.     How  served 169 

II.  Further  provisions 159 

CHAPTER   XVIII. 
Certiorari. 
I.    Service  of  writ,  etc., 161 

CHAPTER   XIX. 
lVri(  of  Habeas  Corpus. 
I.    Service,  return,  etc 162 

CHAPTER  XX. 
Writ  of  Mandamus. 
I,    Service,  return,  etc 165 

CHAPTER   XXI. 
Commitment  for  Insanity. 
I.    Sheriff's  duty  on ' 166 

CHAPTER   XXII. 
Other  Process. 
I.     Of  the  service  of 167 

CHAPTER   XXIII. 
Crimes. 

I.     His  duty  relating  to  arrests 169 

II.     His  duty  relating  to  search  warrants 17fi 

III.     Disposal  of  stolen  property 177 

CHAPTER   XXIV, 
Bench    Warrcfnts. 

I.  On  indictments ISO 

II.  On  final  judgment 181 

III.  Attachments — warrants 181 

IV.  Execution  of  judgments  in  criminal  cases 181 

V.  Abatement  of  nuisance 183 

VI.     Other  duties — summary 184 


CONTENTS.  XIII 

CHAPTER   XXV. 

^ails.  Prisoners,    etc. 

I.  His  duty  as  keeper  of  the  jail 185 

II.  His  duty  as  relating  to  inspection  of  the  jail 187 

HI.  His  duty  to  keep  accounts 188 

IV.  His  duty  to  prisoners  imprisoned  at  hard  labor 188 

CHAPTER   XXVI. 
Couris. 
I.     Sherifif's  duty  to  attend  courts,  etc 190 

"CHAPTER    XXVII. 
Liability. 
I.     The  liability  of  the  sheriff  and  his  sureties 192 

CHAPTER   XXVIII. 

Fees  and  Compensation. 

I.     General  provisions 194 

II.     For  carriage  hire  in  certain  cases 195 

III.     Further  fees 196 


COUNTY  SUPERVISORS. 

CHAPTER   XXIX. 

I.     Provisions  of  the  Code  in  reference  to  them 197 

II.     Proceedmgs  of  the  board  published,  etc 200 

III.  Books  to  be  kept  by  the  board  of 201 

IV.  Provisions  in  reference  to  submissions  of  certain  questions  to  vote,  etc.  201 
V.     Oath  of  office,  and  summary  of  powers 203 

CHAPTER   XXX. 

Records. 

I.     The  auditor  to  keep  records  of 205 

II.     The  highway  book 207 

III.  The  warrant  book 212 

IV.  The  record  book  of  official  bonds 212 

V.     The  highway  plat  book 213 

VI.     Official  bonds — how  approved 213 

CHAPTER  XXXI. 

Powers. 

I.     Decisions  relating  to  their  powers,  duties,  and   liabilities 214 

II.     Responsibility  of  the  office 219 

III.    Compensation 220 


XtV  CONTENTS. 

AUDITOR. 

CHAPTER    XXXII. 

I.     His  duties — general  provisions 221 

II.     Summary  of  other  duties 222 

III.  His  duties  relating  to  revenue 226 

IV.  His  duties  relating  to  highways 229 

V.     His  duties  relating  to  various  other  matters 231 

VI.     His  duties  relating  to  school  fund 231 

VII.     His  duties  relating  to  index  book 233 

VIII.      His  fees  and  compensation 234 

TREASURER. 

CHAPTER    XXXIII. 

I.     The  importance,  election,  qualification 236 

II.     His  general  duties 236 

III.  His  duty  relating  to  the  taxes 238 

IV.  Summary  of  other  duties      254 

V.     School   district  tax 256 

VI.     Permanent   school  fund 256 

VII.     Proceeds  of  unclaimed   property 257 

VIII.     Keeping  accounts 258 

IX.     Decisions  illustrating  his  duties 272 

X.     Fees   and  compensation 274 

RECORDER. 

CHAPTER  XXXIV. 

I.     His  election,  deputies,  etc 276 

II.     His  duties 276 

III.  Decisions  relating  to 278 

IV.  His  duty  relating  to  copies,  etc 279 

V.     Evidence 279 

VI.     Fees   and  compensation 280 

VII.     Additional    duties 281 

SURVEYOR. 

CHAPTER  XXXV. 

I.     His  election,  qualification,  etc 282 

II.     His  duties  generally 282 

III.  Evidence 284 

IV.  Rules  and  instructions 285 

V.  Decisions  illustrating  them 307 

VI.     Re-survey  of  city  and  town  plats 309 

VII.     Fees 310 


CONTENTS.  XV 

CORONER. 

CHAPTER    XXXVI. 

I.     Antiquity  of  the  office,  and  his  duty 311 

II,     Forms  of  findings  on  inquest 315 

III.  Testimony,  witnesses,  etc 317 

IV.  Fees 318 


NOTARIES    PUBLIC. 

CHAPTER     XXXVII. 

I.     Of  the  office  and  evidence 320 

II.     Statutes  of  Iowa,  appointment,  duties 322 

III.  Law  relating  to,  depositions,  protest 324 

IV.  His  record 330 

V.     His   fees 331 


PAPvT    SECOKD. 


TOWNSHIP    OFFICERS. 

CHAPTER   I.  ■ 

I.     Their  election,  qualification  and  duties 335 

TOWNSHIP  TRUSTEES. 

CHAPTER   II. 

I.     Their  powers  and  duties  generally 336 

II.     Their  powers  and  duties  as  overseers  of  the  poor 336 

HI.     Their  powers  and  duties  as  fence  viewers 339 

IV.     Their  powers  and  duties  as  a  board  of  equalization 345 

V.     Their  powers  and  duties  as  a  board  of  health 346 

VI.     Their  powers  and  duties  to  fill  vacancies 348 

VII.     Their  powers  and  duties  relating  to  highways ,  .    .    .    .  348 

VIII.     Their  powers  and  duties  relating  to  drainage 349 

IX.     Their  powers  and  duties  relating  to  trespassing   animals 3.'j2 

X.     Their  powers  and  duties  relating  to  school  fund 355 

XI.    Their  fees  and  compensation 355 


XVI  CONTENTS. 

TOWNSHIP  CLERK. 

CHAPTER    III. 

I.     His  election,  qualification,  etc 356 

II.     His   duties 350 

III.  His  duty  and  powers  relating  to  highways  .    .  ■      300 

IV.  His  duty  in  proceedings  relating  to  drainage 361 

V.     His  proceedings  relating  to  trespassing  animals 302 

VI.     His  duty  in  account  with  the  road  fund 302 

VII.    The  township  record  book 303 

VIII.     Certified  copies  of  as  evidence 305 

IX.     Fees   and  compensation »•....  300 


CONSTABLES. 

CHAPTER    IV. 

I.     Their  election,  qualification,  etc 307 

II.     Their  duties 307 

III.  Officers  in  office 308 

IV.  Their  fees  and   compensation 309 

V.     Summary  proceedings  against 370 


TOWNSHIP  ASSESSOPt. 

CHAPTER   V. 

I.     His  election,  qualification,  etc 371 

II.     His  duties  and  powers 371 

III.     His  compensation 373 


TOWNSHIP  COLLECTOR. 

CHAPTER    VI. 

I.     His  election,  qualification,  etc 374 

II.     His  powers  and  duties 374 

III.     His  compensation 379 

CHAPTER  VII. 
I.     Officers  dejure  and  de  facto      380 

APPENDIX. 
I.    General  business  forms 389 


PART  FIRST. 


OF   COUNTY   OFFICERS. 


CHAPTER   I. 


COUNTY  OFFICERS. 

I.    STATUTES:   GENERAL  PROVISIONS. 

Many  of  the  provisions  of  the  Code  have  a  general  application 
to  all  or  several  county  and  township  oflBcers;  and  in  treating  of 
these  officers  frequent  reference  must  necessarily  be  made  to 
them.  For  the  purposes  of  convenience,  and  of  avoiding  the 
necessity  of  frequent  repetition,  it  is  considered  advisable  to 
insert  these  provisions  together  in  this  chapter.  Of  this  character 
are  those  relating  to  tlie  election  of  county  and  township 
officers. 

IT.    OF   THE   ELECTION   OF   OFFICERS   AND    THEIR 

TERMS. 

The  Code  provides  in  reference  thereto: 

Geneial  Elections. — Section  673.  The  general  election  for  State,  County,  District 
and  Township  Officers,  shall  be  held  throughout  the  State  on  the  second  Tuesday  of 
Octotx:r,  in  each  year,  except  the  years  of  the  Presidential  Election,  when  it  shall  be 
held  on  the  Tuesday  next  after  the  first  Monday  of  November. 

Special  Elections. — Sec.  574.  Special  elections  authorized  by  any  law,  or  held 
to  supply  vacancies  in  any  office,  to  be  filled  by  the  vote  of  the  qualified  voters  of  the 
entire  State,  or  of  any  district  or  county,  or  townsliip,  may  be  held  at  the  time  desig- 
nated by  such  law,  or  by  the  officer  authorized  to  order  such  election. 

Vacancies. — Sec.  576.  All  vacancies  in  office  created  by  the  expiration  of  a 
full  terni,  shall  be  supplied  at  the  general  election  next  preceding  the  time  of  expira- 
tion. 

Term  of  office. — Sec  57R.  The  term  of  office  of  all  officers  chosen  at  a  general 
election  for  a  full  term,  shall  commence  on  the  first  Monday  of  January  next  there- 
after, except  when  othen.visc  provided  by  the  constitution.  The  term  of  an  officer 
chosen  to  fill  a  vacancy,  shall  commence  as  soon  as  he  is  qualified  therefor. 

Cotinty  officers. — Sec.  589.  Each  county  shall  elect  at  the  general  election  in 
each  even-numbered  year,  a  clerk  of  the  district  and  circuit  courts,  and  a  recorder  of 
deeds ;  and  in  each  odd-numbered  year,  an  auditor,  a  treasurer,  a  sheriff,  a  coroner 


4  COITNTY   OFFICERS. 

a  county  superintendent,  and  a  sin-veyor ;  and  each  of  said  officers  shall  hold  his 
office  for  the  term  of  two  years. 

Justices  and  constables. — Sec.  590.  Two  Justices  of  the  peace  and  two  consta- 
bles shall  be  chosen  by  the  qualified  voters  of  each  township  at  the  general  election 
of  each  even-numbered  year,  and  shall  hold  their  offices  for  the  term  of  two  years. 

Township  officers. — Sec.  591.  Three  township  trustees,  a  township  clerk,  one 
assessor,  and  one  highway  supervisor  for  each  highway  district  in  each  civil  township 
in  this  State,  shall  be  chosen  by  the  qualified  voters  of  each  township  at  the  general 
election  annually,  and  shall  hold  their  offices  for  the  term  of  one  year. 

Additional  justices  and  constables. -Sec.  592.  One  or  two  additional  justices 
of  the  peace,  and  one  or  two  additional  constables  may  be  elected  in  each  township 
if  the  trustees  so  direct,  by  posting  up  notices  of  the  fame  in  three  of  the  most  public 
places  in  the  township,  at  least  ten  days  before  election. 

Justices  and  constables  county  officers.— Sec.  59.3.  Justices  of  the  peace  and 
constables  shall  be  considered  as  county  officers  under  the  provisions  of  this  title,  but 
they  shall  be  voted  for  by  the  voters  of  their  respective  townships. 

III.     OF  QUALIFICATION  FOR   OFFICE. 

Constitutional  Provision  .—Section  Five,  of  Article  Eleven, 
of  the  Constitution  of  the  State,  provides  as  follows: 

"Every  person  elected  or  appointed  to  any  office  shall  before  entering  upon  the 
duties  thereof  take  an  oath  or  affirmation  to  support  the  Constitution  of  the  United 
States,  and  of  this  State,  and  also  an  oath  of  office." 

Statutory  I)rovisionS  .—The  Code  further  provides  in  rela- 
tion thereto  as  follows  : 

Must  qualify. — Section  670.  No  civil  officer  shall  enter  on  the  duties  of  his  office 
until  he  has  qualified  himself  as  required  in  this  chapter. 

"Wbo  to  give  bond :  form  of. — Sec.  674.  County  super\nsors  and  township 
trustees  are  not  required  to  give  bond.  All  other  civil  officers  elected  by  the  people 
with  those  specified  hereafter  in  this  chapter,  are  required  to  give  bond  with  a  condi- 
tion in  sub.stance  as  follows  : 

That  as    ....    (naming  the  office)  in township county,  (or 

State  of  Iowa),  he  will  render  a  true  account  of  his  office  and  of  his  doings  therein  to  the 
proper  authority  when  required  thereby  or  by  law  ;  that  he  will  promptly  pay  over  to 
the  person  or  officer  entitled  thereto  all  money  which  may  come  into  his  hands  by 
virtue  of  his  office  ;  that  he  will  promptly  account  for  all  balances  of  money  remaining 
in  his  hands  at  the  termination  of  his  office  ;  that  he  will, exercise  all  reasonable  dili- 
gence and  care  in  the  preser\'ation  and  lawful  disposal  of  all  money,  books,  papers, 
securities,  or  other  property  appertaining  to  his  said  office,  and  deliver  them  to  his 
successor,  or  to  any  other  person  authorized  to  receive  the  same  ;  and  that  he  will 
faithfully  and  impartially,  without  fear,  favor,  fraud,  or  oppression,  discharge  all 
duties  now  or  hereafter  required  of  his  office  by  law. 

Oath. — Sec.  675.  Every  civil  officer  who  is  required  to  give  bond,  shall  take  and 
subscribe  on  the  back  of  his  bond,  or  on  a  paper  attached  thereto,  to  be  certified  by 
the  officer  administering  it,  an  oath  that  he  will  support  the  constitution  of  the  United 
States  and  that  of  the  State  of  Iowa,  and  that  to  the  best  of  his  knowledge  and  abil- 
ity he  will  perform  all  the  duties  of  the  office  of  (naming  it)  as  provided  by  the  con- 
dition of  his  bond  within  written. 


QUALIFICATION   FOB   OFFICE.  5 

Sec.  676.  The  oath  of  office  provided  by  article  eleven  of  the  constitution  for  all 
civil  officers  not  otherwise  expressly  provided  for,  may  be  substantially  in  the  follow- 

incr  form:     I do  solemnly  swear  that  I  will  support  the  constitution 

of  the  United  States  and  the  constitution  of  the  State    of  Iowa,   and  that    I   will 
faithfully  and  impartially,  to  the  best  of  my  ability,  discharge  all  the  duties  of  the 

office  of (naming  it)  in (naming   the    township, 

county,  district,  or  state,  as  the  case  may  be),  as  now  or  hereafter  required  by  law. 

Bond. — Sec.  677.  The  bonds  of  state  and  district  officers  shall  be  given  to  the 
state,  those  of  county  and  township  officers  to  the  county. 

Sec.  678.  The  bonds  of  county  treasurers,  clerks  of  the  district  and  circuit  courts, 
county  recorders,  coroners,  county  surveyors,  township  assessors,  auditors,  county 
superintendents,  sheriffs,  and  of  justices  of  the  peace  and  constables,  shall  each  be  in 
a  penal  sum  to  be  fi.xed  by  the  board  of  supervisors;  but  those  of  the  treasurer,  clerks 
of  the  district  and  circuit  courts,  auditors,  and  sheriffs,  shall  not  be  in  a  less  sum  than 
five  thousand  dollars  each,  and  those  of  justices  and  constables,  not  less  than  five  hun- 
dred dollars  each. 

Nnmber  of  sureties. — Sec.  679.  Every  official  bond  shall  be  given  with  at  least 
two  sureties,  and  all  sureties  shall  be  freeholders  within  the  state  ;  the  bonds  of  the 
state  printer  and  binder  shall  be  given  with  at  least  three  sureties,  and  those  of  the 
treasurer  of  state  and  each  county  treasurer  with  at  least  four  sureties. 

Approval  of  bonds. — Sec.  680.  The  bonds  of  state  officers  must  be  approved  by 
the  governor  before  being  filed;  those  of  district  attorneys,  by  the  district  judges  of 
their  respective  districts ;  those  of  county  officers  and  township  clerk,  by  the  board 
of  supervisors,  and  of  township  officers,  by  the  township  clerk.  The  approval  shall 
in  all  cases  be  indorsed  upon  the  bond  gind  signed  by  the  officer  approving,  or  the 
president  of  the  board.  But  in  case  the  board  of  supervisors  .should  decide  that  a 
bond  which  is  to  be  approved  by  them  is  insufficient,  or  such  bond  is  not  approved 
the  first  day  of  the  session,  then  a  reasonable  time,  not  to  exceed  five  days,  is  to  be 
allowed  the.officer  elect,  to  supply  a  sufficient  bond,  or  to  approve  the  same. 

Sec.  681.  If  the  board  of  supervisors  refuse  or  neglect  to  approve  the  bond  of 
any  county  officer  elect,  he  may  present  the  same  for  approval  to  the  judge  of  the 
circuit  court,  who  shall  fix  a  day  for  the  hearing.  Notice  of  such  hearing  shall  be 
served  upon  the  board  of  supervisors,  as  provided  by  law  for  the  service  of  original 
notice;  and  due  proof  of  such  .service  being  made  to  the  judge  at  the  time  fixed,  he 
shall,  unless  good  cause  for  postponement  be  shown,  proceed  to  hear  and  determine 
the  sufficiency  of  the  bond,  and  if  satisfied  that  the  same  is  sufficient,  he  shall  approve 
the  same,  and  such  approval  shall  have  the  same  force  and  effect  as  an  approval  by 
the  board  of  supervisors,  at  the  time  the  same  was  presented  to  them  for  approval 
would  have  had. 

State  officer's  filed  and  recorded. — Sec.  682.  The  bonds  and  oaths  of  state 
officers  shall  be  filed  in  the  office  of  the  secretary  of  state,  except  those  of  the  secre- 
tary, which  shall  be  filed  and  recorded  in  the  office  of  the  auditor;  those  of  county 
and  township  officers  in  the  county  auditor's  office,  except  those  of  the  county  audi- 
tor, which  shall  be  kept  in  the  county  treasurer's  office,  and  those  of  justices  of  the 
peace,  which  shall  be  filed  by  the  auditor  in  the  office  of  the  clerk  of  the  district 
court,  after  the  same  have  been  approved  and  recorded. 

Penalty. — Sec.  684.  Any  county  officer  who  shall  enter  upon  the  discharge  of  the 
duties  of  liis  office,  without  first  having  caused  his  official  bond  to  be  recorded  shall 
forfeit  to  the  county  of  which  he  is  an  officer,  the  sum  of  five  dollars  for  each  official 
act  by  him  performed  prior  to  the  recording  of  said  bond,  and  the  chairman  of  the 
board  of  supervisors   of  each  county  is  hereby  required  to  bring  suit  for,  or  collect 


6  COUNTY    OFFICERS. 

such  penalty  in  the  name  of  his  county  ;  and  it  shall  he  considered  a  misdemeanor 
for  any  officer  who  is  required  to  give  bond  to  act  in  such  official  capacity  wiihout 
giving  such  bond  as  is  provided  by  law,  and  he  shall  be  liable  to  a  fine  for  an  amount 
not  exceeding  the  amount  of  the  bond  required  of  him. 

When  Governor  and  Lieutenant  Governor  shall  qualify. — Sec.  685.  The 
governor  and  lieutenant-governor  shall  qualify  within  ten  days  after  the  result  of  the 
election  shall  be  declared  by  the  General  Assembly  ;  judges  of  the  supreme,  district, 
and  circuit  courts,  by  the  first  day  of  January  following  their  election  ;  and  all  other 
officers  by  the  first  Monday  of  January  following  their  election. 

Refusal  to  serve. — Sec.  686.  A  failure  to  qualify  within  the  time  prescribed  shall 
be  deemed  a  refusal  to  serve. 

Election  contested.- -Sec.  687.  When  any  election  is  contested,  the  person 
elected  shall  have  twenty  days  in  which  to  qualify  after  the  day  of  the  decision. 

Eflfect  of  bonds. — Sec.  688.  The  bonds  of  officers  shall  be  construed  to  cover 
duties  required  by  law  subsequent  to  giving  them. 

None  void. — Sec.  689.  No  official  bond  shall  be  void  for  want  of  compliance  with 
the  statute,  but  it  shall  be  valid  in  law  for  the  matter  contained  therein. 

Bond  not  approved  until  all  public  property  has  been  accounted  for.— Sec. 
690.  When  the  incumbent  of  an  office  is  re-elec'ed,  he  shall  qualify  as  above  directed; 
but  when  the  re-elected  officer  has  had  public  funds  or  property  in  his  control,  under 
color  of  his  office,  his  bond  shall  not  be  approved  until  he  has  produced  and  fully 
accounted  for  such  funds  and  property  to  the  proper  person  to  whom  he  should 
account  therefor  ;  and  the  officer  or  board  approving  the  bond  shall  indorse  upon  the 
bond  before  its  approval  the  fact  that  the  said  officer  has  fully  accounted  for  and  pro- 
duced all  funds  and  property  before  that  time  under  his  control  as  such  officer;  and 
when  it  is  ascertained  that  the  incumbent  holds  over  another  term  by  reason  of  the 
non-election  of  a  successor,  or  for  the  neglect  or  refusal  of  the  successor  to  qualify, 
he  shall  qualify  anew  within  a  time  to  be  fi.xed  by  the  officer  who  approves  of  the 
bonds  of  such  officers. 

Temporary  officer. — Sec.  691.  Any  person  temporarily  appointed  to  fill  an  office 
during  the  incapacity  or  suspension  of  the  regular  incumbent,  shall  qualify  in  the 
manner  requited  by  this  chapter  for  the  office  so  to  be  filled. 

IV.    REMOVAL— SUSPENSION— DEPUTIES— SURETIES 
AND  VACANCIES. 

The  Code  provides  in  reference  to  removal  and  suspension  from 
Office  as  follows: 

Causes. — Section  746.  All  county  and  township  officers  may  be  charged,  tried, 
and  removed  from  office  for  the  causes  following : 

1.  For  habitual  or  willful  neglect  of  duty  ; 

2.  For  gross  impartiality  ; 

3.  For  oppression  ; 

4.  For  extortion ; 

5.  For  corruption  ; 

6.  For  willful  mal-administration  in  office  ; 

7.  Upon  conviction  of  a  felony; 

8.  For  a  failure  to  produce  and  fully  account  for  all  public  funds  and  property  in 
his  hands  at  any  inspection  or  settlement. 


REMOVAL — SECURITY — VACANCIES.  7 

By  whom  made. — Sec.  747.  Any  person  may  make  such  a  charge,  and  the  dis- 
trict court  shall  have  exclusive  original  jurisdiction  thereof  by  the  service  of  original 
notice. 

Proceedings. — Sec.  748.  The  proceedings  shall  be  as  nearly  like  those  in  other 
actions  at  law  as  the  nature  of  the  case  admits,  excepting  where  otherwise  provided 
in  this  chapter. 

Petition. — Sec.  749.  The  petition  shall  be  by  an  accuser  against  the  accused,  and 
shall  contain  the  charges  with  the  necessary  specifications  under  them  and  be  verified 
by  any  elector. 

Notice. — Sec.  750.  It  will  be  sufficient  that  the  notice  require  the  accused  to 
appear  and  answer  the  petition  of  A  B  (naming  the  accuser)  for  "  official  misde- 
meanors ; "  but  a  copy  of  the  petition  must  be  served  with  the  notice. 

When  clerk  is  the  accused. — Sec.  751.  If  the  person  who  holds  the  office  of  clerk 
of  the  district  and  circuit  court  is  accused  in  either  of  those  capacities,  his  removal 
or  suspension  shall  operate  in  both  courts  and  the  petition  may  be  filed  with  the 
county  auditor,  and  both  he  and  the  clerk  may  issue  subpcenas  for  witnesses,  and  the 
county  auditor  shall  deliver  the  papers  to  the  judge  of  the  district  court,  on  its 
sitting. 

Suspension. — Sec.  752.  If  a  continuance  of  the  action  take  place  beyond  the 
return  term,  the  court  may  suspend  the  accused  from  the  functions  of  his  office  until 
the  determination  of  the  matter,  if  sufficient  cause  appear  from  testimony,  or  affida- 
vits then  presented ;  and  if  such  suspension  take  place,  the  board  of  supervisors  shall 
temporarily  fill  the  office  by  appointment. 

Appointments. — Sec.  753.  When  the  accused  is  an  officer  of  the  court  and  is 
suspended,  the  court  may  supply  his  place  by  appointment  for  the  term. 

Trial :  judgment.— Sec.  754.  The  question  of  fact  shall  be  tried  as  in  other 
actions,  and  if  the  accused  is  found  guilty,  judgment  shall  be  entered  removing  the 
officer  from  his  office,  and  declaring  the  latter  vacant ;  and  a  copy  thereof  shall  be 
certified  to  the  county  auditor,  who  shall  cause  it  to  be  entered  in  the  election  book. 

Costs. — Sec.  755.  The  accuser  and  the  accused  are  liable  to  costs  as  in  other 
actions. 

Judge  may  suspend  clerk  and  sheriff. — Sec.  756.  The  judges  of  the  district 
and  circuit  courts  in  their  respective  districts,  shall  have  authority  on  their  own  motion, 
to  suFpend  from  office  any  clerk  of  those  courts,  or  sheriff  of  a  county,  for  any  of  the 
causes  mentioned  in  this  chapter  coming  to  their  own  knowledge,  or  manifestly  appear- 
ing from  the  papers  or  testimony  in  any  proceeding  in  court. 

Direct  a  petition  to  be  filed. — Sec.  757.  Upon  such  suspension  the  court  may 
direct  the  district  attorney  to  file  a  petition  in  the  name  of  the  county  ;  but  it  need  not 
be  verified. 

Suspension  certified. — Sec.  758.  Such  order  of  suspension  shall  be  certified  to 
the  county  auditor,  and  be  by  him  entered  in  the  election  book. 

OF    DEPUTIES. 

What  officers  may  appoint. — Sec.  700.  The  secretary,  auditor,  ai\d  treasurer  of 
state,  the  superintendent  of  public  instruction,  the  retisterof  the  state  land  office, 
each  clerk  of  the  district  and  circuit  courts,  county  auditor,  treasurer,  sheriff,  sur- 
veyor, and  recorder,  may  appoint  a  deputy  for  whose  acts  he  sh.ill  be  responsible, 
and  from  whom  he  shall  require  bonds;  which  appointment  must  be  in  writing  and 
be  approved  by  the  officer  who  has  the  approval  of  the  principal's  bond,  and  shall  be 


8  COUNTY   OFFICERS. 

revocable  by  WTiting  under  the  principal's  hand,  and  both  the  appointment  and  the 
revocation  shall  be  filed  and  kept  in  the  office  of  the  secretary  of  state  and  county 
auditor  respectively. 

Powers  of  deputy. — Sec.  767.  In  the  absence  or  disability  of  the  principal,  the 
deputy  shall  perform  the  duties  of  his  principal  pertaining  to  his  own  office ;  but 
when  any  officer  is  required  to  act  in  conjunction  with,  or  in  place  of  another  officer, 
his  deputy  cannot  supply  his  place. 

Who  may  be  appointed. — Sec.  768.  The  secretary,  treasurer,  and  auditor  of 
state  can  neither  of  them  appoint  either  of  the  others  his  deputy  ;  nor  can  either  the 
clerk  of  the  district  court,  auditor,  recorder,  treasurer,  or  sheriff  of  a  county  appoint 
either  of  the  others. 

Sheriff. — Sec.  769.  The  sheriff  may  appoint  such  number  of  deputies  as  he 
sees  fit. 

Oath. — Sec.  770.  Each  deputy  shall  take  the  same  oath  as  principal,  which  shall 
be  indorsed  upon  and  filed  with  the  certificate  of  his  appointment. 

Compensation. — Sec.  771.  When  a  county  officer  receiving  a  salary  is  compelled 
by  the  pressure  of  the  business  of  his  office  to  employ  a  deputy,  the  board  of  super- 
visors may  make  a  reasonable  allowance  to  such  deputy. 

OF   ADDITIONAL    SECURITY,  AND   THE   DISCHARGE  OF  SUKETIES. 

Bonds  of  State  officers  increased. — Sec.  772.  WTienever  the  governor  shall  deem 
it  advisable  that  the  bonds  of  any  state  officer  should  be  increased  and  the  security 
enlarged,  or  a  new  bond  given,  he  shall  notify  said  officer  of  the  fact,  the  amount  of 
new  or  additional  security  to  be  given,  and  the  time  when  the  same  shall  be  executed, 
which  said  new  security  shall  be  approved  and  filed  as  provided  by  law. 

Additional  security  required. — Sec.  77.3.  Any  officer  or  board  who  has  the 
approval  of  another  officer's  bond,  when  of  opinion  that  the  public  security  requires 
it,  upon  giving  ten  days'  notice  to  show  cause  to  the  contrary,  may  require  him  to 
give  such  additional  security  by  a  new  bond,  as  may  be  deemed  requisite,  within  a 
reasonable  time  to  be  prescribed. 

Security  in  force  ;  vacancy. — Sec.  774.  If  a  requisition  made  under  either  of 
the  foregoing  sections  be  complied  with,  both  the  old  and  the  new  security  shall  be  in 
force  ;  and  if  not  complied  with,  the  office  shall  become  and  be  declared  vacant,  and 
the  proceeding  be  certified  to  the  proper  officer,  to  be  recorded  in  the  election  book, 
or  township  record. 

■When  a  surety  deems  himself  insecure. — Sec.  775.  WTien  any  surety  on  the 
bond  of  a  civil  officer  conceives  himself  in  danger  by  remaining  surety,  and  desires 
to  be  relieved  of  his  obligation,  he  may  petition  the  approving  officer  or  board  above 
referred  to  for  relief,  stating  the  ground  of  his  apprehension. 

Notice  of  petition. — Sec.  776.  The  surety  shall  give  the  principal  at  least  twen- 
four  hours'  notice  of  the  presenting  and  filing  of  the  petition,  with  a  copy  thereof. 
At  the  e.xpiration  of  this  notice  the  approving  officer  may  hear  the  matter,  or  may 
postpone  the  hearing  as  the  case  permits  or  requires. 

Hearing :  order ;  effect. — Sec.  777.  If,  upon  the  hearing,  there  appears  sub- 
stantial ground  for  apprehension,  the  approving  officer  or  board  may  order  the  prin- 
cipal to  give  a  new  bond  and  to  supply  the  place  of  the  petitioning  surety  within  a 
reasonable  time  to  be  prescribed  ;  and  upon  such  new  bond  being  given,  the  petition- 
ing surety  upon  the  former  bond  shall  be  declared  discharged  from  liability  on  the 
same  for  future  acts ;  which  order  of  discharge  shall  be  entered  in  the  proper  election 


VACANCIES SPECIAL   ELECTIONS.  9 

book,  but  the  bond  will  continue  binding  upon  those  who  do  not  petition  for  relief. 

Failure  to  comply. — Sec.  778.  If  the  new  bond  is  not  given  as  required,  the 
office  shall  be  declared  vacant,  and  the  order  to  that  effect  entered  in  the  proper 
election  book. 

Justice  of  the  peace. — Sec.  779.  If  the  proceedings  relate  to  a  justice  of  the 
peace,  and  he  is  removed  from  office,  the  county  auditor  shall  notify  the  proper 
township  trustees,  or  clerk,  of  the  removal. 

Subpcenas. — Sec.  780.  The  approving  officer  may  issue  subpoenas  in  his  official 
name  for  witnesses,  compel  their  attendance,  and  swear  them. 

OF    VACANCIES    AND    SPECIAL    ELECTIONS. 

Civil  office  when  vacant. — Sec.  781.  Every  civil  office  shall  be  vacant  upon 
the  happening  of  either  of  the  following  events,  at  any  time  before  the  expiration  of 
the  term  of  such  office,  as  follows : 

1.  The  resignation  of  the  incumbent ; 

2.  His  death ; 

3.  His  removal  from  office; 

4.  The  decision  of  a  competent  tribunal  declaring  his  office  vacant ; 

5.  His  ceasing  to  be  a  resident  of  the  state,  district,  county  or  township  in  which 
the  duties  of  his  office  are  to  be  exercised,  or  for  which  he  may  have  been  elected ; 

6.  A  failure  to  elect  at  the  proper  election,  there  being  no  incumbent  to  continue 
in  office  until  his  successor  is  elected  and  qualified,  nor  other  provision  relating 
thereto ; 

7.  A  forfeiture  of  office  as  provided  by  any  law  of  the  state ; 

8.  Conviction  of  an  infamous  crime,  or  of  any  public  offense  involving  the  viola- 
tion of  his  oath  of  office  ; 

9.  The  acceptance  of  a  commission  to  any  military  office,  either  in  the  militia  of 
this  state,  or  in  the  service  of  the  United  States,  which  requires  the  incumbent  in 
the  civil  office  to  exercise  his  military  duties  out  of  the  state  for  a  period  not  less 
than  sixty  days  ; 

Resignations  ;  how  made.  Sec.  782.  Resignation  of  civil  officers  may  be  made 
as  follows ; 

1.  By  the  governor  to  the  general  assembly,  if  in  session,  if  not,  to  the  secretary 
of  state ; 

2.  By  senators  and  representatives  in  congress,  and  by  all  officers  elected  by  the 
qualified  voters  of  the  state,  and  by  judges  of  courts  of  record,  and  district  attornies, 
to  the  governor ; 

3.  By  senators  and  representatives  in  the  general  assembly,  to  the  presiding  officer 
of  their  respective  bodies,  if  in  session,  who  shall  immediately  transmit  information 
of  the  same  to  the  governor ;  if  such  bodies  are  not  in  session  to  the  governor ; 

4.  By  all  county  officers  to  the  board  of  supervisors,  and  by  members  of  the  board 
of  supervisors,  to  the  county  auditor; 

5.  By  all  township  officers,  to  the  township  clerk ;  and  by  the  township  clerk  to 
the  township  trustees,  or  any  one  of  them  ; 

6.  By  all  officers  holding  by  appointment,  to  the  officer  or  body  by  whom  they 
were  appointed. 

Vacancies  :  how  filled. — Sec.  783.     Vacancies  shall  be  filled  as  follows; 
In  the  offices  of  the  clerk  and  reporter  of  the  supreme  court,  by  the   supreme 
court  I 


10  COUNTY   OFFICEBS. 

In  all  other  state  offices,  and  in  the  membership  of  any  board  or  commission 
created  by  the  state,  where  no  other  method  is  specially  provided,  by  the  governor ; 

In  county  offices  by  the  board  of  supervisors ;  and  in  the  membership  of  such  board 
by  the  county  clerk,  auditor  and  recorder; 

In  township  officers  by  the  trustees,  but  where  the  offices  of  the  three  trustees  are 
all  vacant  the  clerk  shall  appoint,  and  if  there  be  no  clerk,  the  county  auditor  shall 
appoint. 

Term  continued  until  succesBor  qualifies.  Sec.  784.  Every  officer  elected  or 
appointed  fora  fixed  term,  shall  hold  office  until  his  successor  is  elected  and  qualified 
unless  the  statute  under  which  he  is  elected  or  appointed  expressly  declares  the  con- 
trary; provided,  that  this  section  shall  not  be  construed  in  any  way  to  prevent  the 
removal  or  suspension  of  such  officer  during  or  after  his  term,  in  cases  provided  by 
law. 

Appointments. — Sec.  785.  Appointments  under  the  provisions  of  this  chapter 
shall  be  in  writing  and  continue  until  the  next  election  at  which  the  vacancy  can  be 
filled  and  until  a  successor  is  elected  and  qualified,  and  be  filed  with  the  secretary  or 
proper  township  clerk,  or  in  the  proper  county  office,  respectively. 

Qualification. — Sec.  786.  Persons  appointed  to  office  as  herein  provided,  shall 
qualify  in  the  same  manner  as  those  elected,  within  a  time  to  be  prescribed  in  their 
appointments,  and  the  provisions  of  the  chapter  relating  to  qualification  for  office  are 
extended  to  them. 

Bremoved.— Sec.  787.  A  person  appointed  as  herem  contemplated,  may  be 
removed  by  the  officer  appointing,  and  no  person  can  be  appointed  who  has  been 
removed  from  office  within  one  year. 

Who  may  take  possession  of  office. — Sec.  788.  When  a  vacancy  occurs  in  a 
public  office,  possession  shall  be  taken  of  the  office  room,  and  of  the  books,  papers, 
and  all  things  pertaining  to  the  office,  to  be  held  until  the  election  or  appointment 
and  qualification  of  a  successor,  as  follows: 

Of  the  office  of  the  county  auditor,  by  the  clerk  of  the  district  court; 

Of  that  of  the  clerk  or  treasurer,  by  the  county  auditor ; 

Of  any  of  the  state  officers,  by  the  governor;  or  in  his  absence  or  inability  at  the 
time  of  the  occurrence,  as  follows  : 

Of  the  secretary,  by  the  treasurer; 

Of  the  auditor,  register  of  the  land  office,  or  superintendent  of  public  instruction, 
by  the  secretary  ; 

Of  the  treasurer,  by  the  secretary  and  auditor,  who  shall  make  an  inventory  of  the 
money  and  warrants  therein,  sign  the  same,  and  transmit  it  to  the  governor  if  he  be 
in  the  state ;  and  the  secretary  shall  take  the  keys  of  the  safes  and  desks  after  depos- 
iting the  books,  papers,  money,  and  warrants  therein,  and  the  auditor  shall  take  the 
key  of  the  office  room. 

Election  to  fill  vacancies. — Sec.  789.  Vacancies  occurring  in  the  township 
officers,  ten  days ;  in  county  offices,  fifteen  days ;  and'in  all  other  public  elective  offices, 
thirty  days  prior  to  a  general  election,  shall  be  filled  thereat.  When  a  vacancy  occurs 
in  the  office  of  representative  in  congress,  or  senator  or  representative  in  the  general 
assembly,  and  the  body  in  which  such  vacancy  exists  will  convene  prior  to  such  elec- 
tion, the  governor  shall  order  a  special  election  to  fill  such  vacancy,  at  the  earliest 
practicable  time,  and  ten  days'  notice  of  such  election  shall  be  given. 

Members  of  the  general  assembly:  vacancy. — Sec.  790.  Whenever  a  vacancy 
shall  occur  in  the  office  of  a  senator  or  representative  m  the  general  assembly,  the 
auditor  of  the  county  in  which  such  vacancy  occurs  shall  notify  the  governor  of  such 


FEES    AND    OTHER    MATTERS.  11 

fact,  and  the  cause  of  the  vacancy  ;  and  if  more  than  one  county  is  represented  in 
the  district  in  which  such  vacancy  may  occur,  then  such  notice  shall  be  given  by  the 
auditor  of  the  county  in  which  the  late  member  resided. 

Y.    FEES  AND  OTHER  MATTERS. 

Statutory  provisions. — The  C^ode  further  provides,  in 
relation  to  public  officers,  as  follows: 

Where  no  other  fees  are  fixed. — .Section  3819.  Any  officer  legally  called  on  to 
perform  any  of  the  following  services,  in  cases  where  no  fees  have  been  fixed  therefor, 
shall  be  entitled  to  receive  : 

For  drawing  and  certifying  an  affidavit,  or  giving  a  certificate  not  attached  to  any 
other  writing,  twenty-five  cents  ; 

For  affixing  his  official  seal  to  any  paper,  whether  the  certificate  be  under  seal  or 
not,  thirty-five  cents  ; 

For  making  out  a  transcript  of  any  public  papers  or  records  under  his  control,  for 
the  use  of  a  private  person  or  corporation,  or  recording  articles  of  incorporation,  for 
ever\'  one  hundred  words,  ten  cents. 

For  publication  of  legal  notices. — Sec.  3832.  In  all  cases  where  publication  of 
legal  notices  of  any  kind  are  required  or  allowed  by  law,  the  person  or  officer  desiring 
such  publication  shall  not  be  required  to  pay  more  than  one  dollar  per  square  of  ten 
lines  of  brevier  type,  or  its  equivalent,  for  the  first  insertion,  and  fifty  cents  per  square 
for  each  subsequent  insertion  ;  and  any  person  desiring  such  publication,  who  shall  have 
tendered  such  notice  to  the  editor,  proprietor,  or  person  conducting  some  newspaper, 
published  weekly  or  oftener  in  such  county,  having  the  largest  circulation,  and  has 
offered  to  pay  for  the  publication  of  the  same  at  the  rate  herein  named,  and  in  case 
the  publication  of  such  notice  is  refused  at  the  price  above  fixed,  then  the  officer  or 
person  desiring  such  publication  shall  procure  the  insertion  of  such  notice  in  the 
newspaper  nearest  the  county  seat  of  such  county  having  a  general  circulation  that 
will  publish  such  notice  at  the  rate  herein  provided;  which  publication  shall  in  all 
respects  have  the  same  effect  in  law  and  equity  as  if  such  notice  had  been  published 
in  the  county  where  such  action  was  commenced  or  sale  to  take  place.  And  in  all 
cases  of  publication  of  notices  in  connection  with  commencement  of  actions  in  court, 
or  sales  upon  execution,  the  plaintiff  may  designate  the  newspaper  published  within 
the  county  in  which  such  notice  shall  be  published. 

For  printing  delinquent  tax  list. — Skc.  3833.  The  compensation  for  printing 
the  delinquent  tax  list,  shall  be  at  a  rate  not  exceeding  twenty  cents  for  each  tract  of 
real  property  advertised  for  sale ;  and  in  case  there  is  no  newspaper  published  in  the 
county  where  such  lands  lie,  then  the  treasurer  shall  cause  the  publication  to  be  made 
in  the  nearest  newspaper  having  a  circulation  in  such  county,  provided  that  no  news- 
paper shall  be  considered  as  one  of  general  circulation  unless  it  has  two  hundred 
regular  weekly  subscribers. 

Arbitrators. — Sec.  3834.  The  compensation  of  arbitrators  shall  be,  for  each  day 
actually  and  necessarily  spent  in  the  discharge  of  their  duty,  two  dollars,  or  such  other 
sum  as  may  be  agreed  upon  by  the  parties  in  interest.  The  fees  of  referees  acting 
under  a  submission  made  by  or  agreed  to  by  the  parties  in  a  case  pending  in  a 
court  of  record,  shall  be  fixed  by  the  court  or  judge  and  taxed  as  a  part  of  the  costs 
in  the  case. 

Depositions. — Sec.  3835.  Any  officer  or  person  taking  depositions  is  authorized  to 
charge  therefor  at  the  rate  of  ten  cents  per  hundred  words,  exclusive  of  the  certificate. 


13  COUNTY   OPFICERS. 

Beceipt  for  fees  paid.— Sec.  38.3fi.  Every  person  charging  fees  shall,  if  required 
by  the  person  paying  them,  give  him  a  receipt  therefor,  setting  forth  the  items  and 
the  date  of  each. 

Bill  of  particulars. —Sec.  .3837.  When  no  other  provision  is  made  on  the  sub- 
ject, the  party  requiring  any  service  shall  pay  the  fees  therefor  upon  the  same  being 
rendered,  and  a  bill  of  particulars  being  presented  if  required. 

Putting  up  advertisements.— Sec.  3838.  In  all  cases  where  an  officer  in  the 
discharge  of  his  duty  is  required  to  set  up  an  advertisement,  he  shall,  when  not  other- 
wise provided,  be  allowed  twenty-five  cents,  and  if  an  advertisement  is  required  to  be 
published  in  a  newspaper,  the  money  therefor  shall  be  paid  by  the  party,  and  may  be 
taxed  in  the  bill  of  costs. 

OflBcers  to  keep  list  of  fees  posted  up. — Sec.  3839.  Every  officer  entitled  to  fees 
shall  keep  posted  up  in  his  office  a  fair  table  thereof  on  pain  of  forfeiture  of  two  dol- 
lars per  day,  for  the  benefit  of  the  county,  for  each  day  he  fails  to  keep  such  tables 
of  fees  thus  posted  up. 

Penalty  for  taking  more  than  allowed. — Sec.  3840.  Any  officer  who  wilfully 
takes  higher  or  other  fees  than  are  allowed  by  law,  is  guilty  of  a  misdemeanor,  and 
may  be  fined  therefor  a  sum  not  less  than  than  ten  nor  more  than  fifty  dollars. 

When  paid  by  a  county. — Where  costs  are  paid  by  a  county  other  than  the  one 
where  the  offense  was  committed,  the  amount  of  such  costs  shall  be  deemed  a  charge 
in  favor  of  such  county  and  against  the  one  in  which  the  offense  was  committed,  and 
may  be  recovered  by  action  in  any  court  having  jurisdiction. 

When  fees  must  be  paid  in  advance. — Sec.  3842.  No  officer  or  other 
person  mentioned  in  this  title  is  entitled  to  any  of  the  fees  in  advance,  where 
the  same  grows  out  of  any  criminal  prosecution.  But  in  all  otber  cases, 
except  where  the  fees  or  compensation  is  payable  by  the  state  or  county,  or 
when  the  orders,  judgments,  or  decrees  of  courts,  or  justices  of  the  peace  are 
to  be  entered  or  performed,  or  their  writs  executed,  the  officer  performing 
any  of  the  services  named  in  this  chapter  is  entitled  to  his  fees  in  advance  if 
he  demand  them.  After  the  expiration  of  sixty  days  from  the  rendition  of  a  final 
judgment  not  appealed,  removed  or  reversed,  the  clerk  of  the  court  or  a  justice  of 
the  peace  in  whose  office  the  judgment  is  entered,  may,  and  on  demand  of  any  party 
entitled  to  any  part  thereof,  shall  issue  a  fee  bill  for  all  costs  of  such  judgment,  which 
shall  have  the  same  force  and  effect  as  an  execution  issued  by  such  officer,  and  shall 
be  served  and  executed  in  the  same  manner. 

When  fees  are  payable  by  state  or  county. — Sec.  3843.  In  all  cases  where 
fees  or  compensation,  as  distinguished  from  a  certain  and  fixed  salary,  are  by  the 
provisions  of  this  title  to  be  paid  any  officer  or  other  person,  out  of  the  county  or 
state  treasury,  no  part  of  the  same  shall  be  audited  or  paid,  until  a  particular  account 
has  been  filed  in  the  auditor's  office  of  the  county  or  state,  verified  by  affidavit,  and 
showing  clearly  for  what  services  such  fees  or  compensation  are  claimed,  and  when 
the  same  was  rendered. 

Supervisors  to  furnish  officers  with  fuel  and  stationery. — Sec.  3844.  The 
board  of  supervisors  shall  furnish  the  clerk  of  the  district  and  circuit  court,  sheriff, 
recorder,  treasurer,  auditor,  and  county  superintendent,  with  offices  at  the  county 
seat,  together  with  fuel,  lights,  blanks,  books  and  stationery  necessary  and  proper  to 
enable  them  to  discharge  the  duties  of  their  respective  offices ;  but  in  no  case  shall 
any  of  such  officers  be  permitted  to  occupy  an  office  also  occupied  by  a  practicing 
attorney. 

County  officers  control  advertisements. — Sec.  306.  The  clerk  of  the  district 
court,  sheriff,  auditor,  treasurer  and  recorder  shall  designate  the  newspapers  in  which 


ADMINISTRATION    OF    OATHS SECURITIES,    ETC.  13 

the  notices  pertaining  to  their  several  offices  shall  be  published,  and  the  board  of 
supervisors  shall  designate  the  papers  in  which  all  other  county  notices  shall  be  pub- 
lished; and  in  counties  having  a  population  exceeding  eighteen  thousand  inhabitants, 
the  board  shall  designate  as  one  of  such  papers,  a  paper  published  in  a  foreign  lan- 
guage, if  there  be  such  in  its  county. 

VI.  OF  THE  ADMINISTRATION  OF  OATHS. 

Who  authorized, — Section  277.  The  following  officers  are  authorized  to  admin- 
ister oaths,  and  take  and  certify  the  acknowledgment  of  instruments  in  writing  ; 

Each  judge  of  the  supreme  court ; 

Each  judge  of  the  district  court ; 

Each  judge  of  the  circuit  court ; 

The  clerk  of  the  supreme  court ; 

Eacli  clerk  of  the  district  court  as  such,  or  as  clerk  of  the  circuit  court ; 

Each  deputy  clerk  of  the  district  and  circuit  courts  ; 

Each  county  auditor ; 

Each  deputy  county  auditor; 

Each  sheriff  and  his  deputies,  in  cases  where  they  are  authorized  by  law  to  select 
commissioners  or  appraisers,  or  to  empanel  jurors  for  the  view  or  appraisement  of 
property,  or  are  directed  as  an  official  duty  to  have  property  appraised,  or  to  take  the 
answers  of  garnishees  ; 

Each  justice  of  the  peace  within  his  county  ; 

Each  notary  public  within  his  county. 

Affirmation.— Sec.  278.  Persons  conscientiously  opposed  to  swearing  may  affirm, 
and  shall  be  subject  to  the  penalties  of  perjury,  as  in  case  of  swearing. 

VII.  OF  'SECURITIES  AND  INVESTMENTS. 

Section  246.  Whenever  security  is  required  to  be  given,  by  law  or  by  order  on 
judgment  of  a  court,  and  no  particular  mode  is  prescribed,  it  shall  be  by  bond. 

Sec.  247.  Such  security,  when  not  otherwise  directed,  may,  if  for  the  benefit  of 
individuals,  be  given  to  the  party  intended  to  be  thereby  secured.  If  in  relation  to 
the  public  matters  concerning  the  inhabitants  of  one  county  or  part  of  a  county,  it 
may  be  made  payable  to  the  county  ;  if  concerning  the  inhabitants  of  more  than  one 
county,  it  may  be  made  payable  to  the  state.  But  a  mere  mistake  in  these  respects 
will  not  vitiate  the  security. 

Sec.  248.  No  defective  bond  or  other  security,  or  affidavit  in  any  cn,se,  shall  prej- 
udice the  party  giving  or  making  it,  provided  it  be  so  rectified  within  a  reasonable 
time  after  the  defect  is  discovered  as  not  to  cause  essential  injury  to  the  other  party. 

Sec.  249.  The  surety  in  every  bond  provided  for  by  this  code,  must  be  a  resident 
of  this  state,  and  worth  double  the  sum  to  be  secured,  beyond  the  amount  of  his 
debts,  and  have  property  liable  to  execution  in  this  state  equal  to  the  sum  to  be 
secured.  Where  there  are  two  or  more  sureties  in  the  same  bond,  they  must,  in  the 
aggregate,  have  the  qualification  prescribed  in  this  section. 

Sec.  260.  The  officer  whose  duty  it  is  to  take  a  surety  in  any  bond  provided  for 
by  this  code,  shall  require  the  person  offered  as  surety  to  make  affidavit  of  his  (jual- 
ification,  whicli  affidavit  may  be  made  before  such  officer,  or  other  officer  qualified  to 
administer  oaths.  'I  he  taking  of  such  an  affidavit  shall  not  exempt  tlie  officer  from 
any  liability  to  which  he  might  otherwise  be  subject,   for  taking  insufficient  security. 


14  COUNTY   OFFICERS. 

Sec.  251.  Where  investments  of  money  are  directed  to  be  made,  and  no  mode  of 
investment  is  pointed  out  by  statute,  they  must  be  made  in  the  stock  or  bonds  of 
this  State  or  of  those  of  the  United  States,  or  upon  bond  or  mortgage  of  real  property 
of  clear  unincumbered  value  of  at  least  twice  the  investment. 

Sec.  252.  When  such  investment  is  made  by  order  ot  any  court,  the  security  taken 
shall  in  no  case  be  discharged,  impaired,  or  transferred  without  an  order  of  the  court 
to  that  effect  entered  on  the  minutes  thereof. 

Sec.  253.  The  clerk  or  other  person  appointed  in  such  cases  to  make  the  invest- 
ment, must  receive  all  moneys  as  they  become  due  thereon,  and  apply  or  re-invest 
the  same  under  the  direction  of  the  court,  unless  the  court  appoint  some  other  person 
to  do  such  acts. 

Account,  when  rendered. — Pec.  254.  Once  in  each  year,  and  oftener  if  required 
bv  the  court,  the  person  so  appointed  must,  on  oath,  render  to  the  court  an  account 
in  writing  of  all  moneys  so  received  by  him,  and  of  the  application  thereof. 

Delivery  of  property  or  deposit  of  money.— Sec.  255.  When  it  is  admitted  by 
the  pleading  or  examination  of  a  puny  that  he  has  in  his  possession,  or  under  his 
control,  any  money  or  property  capable  of  delivery,  which  is  in  any  degree  the  sub- 
ject of  litigation,  and  which  is  held  by  liim  as  trustee  for  another  party,  the  court, 
or  judge  thereof,  may  order  the  same  to  be  deposited  in  the  office  of  the  clerk,  or 
delivered  to  such  party,  with  or  without  such  security,  subject  to  the  farther  direc- 
tion of  the  court ;  or  may  order  such  money  to  be  deposited  in  a  bank  with  the  con- 
sent of  the  parties  in  interest,  to  the  credit  of  the  court  in  which  the  action  is  pending, 
and  the  same  shall  be  paid  out  by  such  bank,  only  upon  the  check  of  the  clerk 
annexed  to  the  certified  order  of  the  court  directing  such  payment. 

Sec.  256.  \Yhenever  a  court  or  judge,  in  the  exercise  of  its  or  his  authority,  has 
ordered  the  deposit  or  delivery  of  money  or  other  property,  and  the  order  is  diso- 
beyed, the  court,  besides  punishing  the  disobedience,  may  make  an  order  requiring 
the  sheriff  to  take  the  money  or  property,  and  deposit  or  deliver  it  in  conformity  with 
the  directions  of  the  court  or  judge. 

Sec.  257.  The  sheriff  has  the  same  power  in  such  cases,  as  when  acting  under  an 
order  for  the  delivery  of  personal  property. 

VIII.— CRIMES  AND  THEIR  PUNISHMENT. 

The  Code  defines  crimes  and  misdemeanors  of  oflBcers,  and  pro- 
vides for  their  punishment  as  follows: 

Sheriff  and  other  officers  receiving  bribes. —Section  3948.  If  any  sheriff,  deputy 
sheriff,  constable,  or  coroner,  receive  from  a  defendant,  or  any  other  person,  any 
money  or  other  valuable  thing  as  a  consideration  or  inducement  for  omitting  or 
delaying  to  arrest  any  defendant,  or  to  carry  him  before  a  magistrate  or  to  prison; 
or  for  postponing,  delaying,  or  neglecting  the  sale  of  property  on  execution  ;  or  for 
omitting  or  delaying  to  perform  any  other  duty  pertaining  to  his  office,  he  shall  be 
punished  by  fine  not  exceeding  five  hundred  dollars,  or  be  imprisoned  in  the  county 
jail  not  exceeding  six  months,  or  by  both  fine  and  imprisonment  at  the  discretion  of 
the  court. 

Eefusing  to  execute  process  in  criminal  cases.— Sec.  3949.  If  any  officer 
authorized  to  serve  process,  wilfully  refuse  to  execute  any  lawful  process  to  him 
directed,  requiring  him  to  apprehend  or  confine  any  person  charged  with,  or  con- 
victed of,  any  public  offense  ;  or  wilfully  delay  or  omit  to  execute  such  process, 
whereby  such  person  escape,  he  shall  be  punished  by  imprisonment  in  the  county 


CRIMES   AND   THEIE   PUNISHMENT.  15 

jail  not  more  than  one  year,  or  by  fine  not  exceeding  one  thousand  dollars,  or  by 
both  fine  and  imprisonment  at  the  discretion  of  the  court. 

Extortion. — Sec.  3950.  If  any  person  corruptly  and  wilfully  demand  and 
receive  of  another,  for  performing  any  service  or  official  duty  for  which  the  fee  or 
compensation  is  established  by  law,  any  greater  fee  or  compensation  than  is  allowed 
or  provided  for  the  same;  or  if  any  witness  falsely  and  corruptly  certify  that 
as  such  he  has  traveled  more  miles,  or  attended  more  days  than  he  has  actually 
traveled  or  attended,  he  shall  be  punished  by  fine  not  exceeding  one  hundred  dollars 
for  each  offense,  or  imprisoned  in  the  county  jail  not  exceeding  six  months. 

Compounding  felonies. — Sec.  3951.  If  any  person  having  knowledge  of  the 
commission  of  any  offense  punishable  with  imprisonment  in  the  penitentiary  for  life, 
take  any  money,  or  valuable  consideration,  or  gratuity,  or  any  promise  therefor,  npon 
an  agreement  or  understanding,  expressed  or  implied,  to  compound  or  conceal  such 
offense,  or  not  to  prosecute  the  same,  or  not  to  give  evidence  thereof,  he  shall  be  pun- 
ished by  imprisonment  in  the  penitentiary  not  more  than  six  years,  or  by  fine  not 
exceeding  one  thousand  dollars. 

Sec.  3952.  If  any  person  having  knowledge  of  the  commission  of  any  offense 
punishable  by  imprisonment  in  the  penitentiary  for  a  limited  term  of  years  is  guilty  of 
the  offense  described  in  the  preceding  section,  he  shall  be  punished  by  imprisonment 
in  the  county  jail  not  more  than  one  year,  and  by  fine  not  exceeding  four  hundred 
dollars. 

Suffering  prisoner  to  escape. — Sec.  3953.  If  any  jailor  or  other  officer  volun- 
tarily suffer  any  prisoner  in  his  custody  upon  a  charge  or  conviction  of  a  felony  pun- 
ishable by  imprisonment  for  life  to  escape,  he  shall  be  punished  by  imprisonment  in 
the  penitentiary  not  more  than  ten  years,  nor  less  one  year. 

Sec.  3954.  If  any  jailor  or  other  officer  voluntarily  suffer  any  prisoner  in  his  cus- 
tody upon  charge  or  conviction  of  any  other  felony  to  escape,  he  shall  be  punished 
by  imprisonment  in  the  penitentiary  not  more  than  eight  years,  or  by  fine  not  more 
than  one  thousand  dollars. 

Sec.  3955.  If  any  jailor  or  other  officer  suffer  any  prisoner  in  his  custody  upon 
charge  or  conviction  of  any  public  offense  to  escape,  he  shall  be  punished  by  fine  not 
exceeding  one  thousand  dollars,  and  by  imprisonment  in  the  penitentiary  not  exceed- 
ing five  y^g'^rs. 

Falsely  assuming  to  be  an  officer. — Sec.  3962.  If  any  person  falsely  assume 
to  be  a  judge,  justice  of  the  peace,  magistrate,  sheriff,  deputy  sheriff,  coroner,  or  con- 
stable, and  take  upon  himself  to  act  as  such,  or  require  any  one  to  aid  or  assist  him 
in  any  matter  pertaining  to  the  duty  of  any  such  officer,  he  shall  be  punished  by 
imprisonment  in  the  county  jail  not  more  than  one  year  or  by  fine  not  exceeding 
three  hundred  dollars. 

Exercising  office  without  authority. — Sec.  3963.  If  any  person  take  upon 
himself  to  exercise  or  officiate  in  any  office  or  place  of  authority  in  this  state,  with- 
out being  legally  authoiized  ;  or  if  any  person  by  color  of  his  office,  wilfully  and  cor- 
ruptly oppress  any  person  under  pretense  of  acting  in  his  official  capacity,  he  shall 
be  punished  by  fine  not  exceeding  one  thousand  dollars,  or  imprisonment  in  the 
county  jail  not  more  than  one  year  ;  or  by  both  fine  and  imprisonment. 

Stirring  up  quarrels. — Sec.  3964.  If  any  judge,  justice  of  the  peace,  clerk  of 
any  court,  sheriff,  coroner,  constable,  attorney  or  counsellor  at  law,  encourage,  excite 
or  stir  up  any  suit,  quarrel,  or  controversy  between  two  or  more  persons,  with  intent 
to  injure  such  person  or  persons,  he  shall  be  punished  by  fine  not  exceeding  five  hun- 
dred dollars,  and  shall  be  answerable  to  the  party  injured  in  treble  damages. 


16  COUNTY   OFPICEES. 

Neglect  of  duty. — Sec.  3965.  When  any  duty  is  or  shall  be  enjoined  by  law 
upon  any  public  officer,  or  upon  any  person  holding  any  public  trust  or  employment, 
every  willful  neglect  to  perform  such  duty,  where  no  special  provision  has  been  made 
for  the  punishment  of  such  delinquency,  is  a  misdemeanor. 

Misdemeanors.-  -Sec.  3966.  When  the  performance  of  any  act  i;  prohibited  by 
any  statute,  and  no  penalty  for  the  violation  of  such  statute  is  imposed,  the  doing  of 
such  act  is  a  misdemeanor. 

Punishment  of  when  none  other  prescribed. — Sec.  3967.  Every  person  who 
is  convicted  of  a  misdemeanor,  the  punishment  of  which  is  not  otherwise  prescribed 
by  any  statute  of  this  state,  shall  be  punished  by  imprisonment  in  the  county  jail  not 
more  than  one  year,  or  by  fine  not  exceeding  five  hundred  dollars,  or  by  both  such 
fine  and  imprisonment. 

Making  false  entries  and  returns.— Sec.  3968.  If  any  public  officer  fraudu- 
lently make  or  give  false  entries,  or  false  returns,  or  false  certificates  of  receipts  in 
cases  where  entries,  returns,  certificates,  or  receipts  are  authorized  by  law,  he  shall 
be  fined  not  exceeding  five  hundred  dollars,  or  be  imprisoned  in  the  county  jail  not 
exceeding  one  year,  or  both,  at  the  discretion  of  the  court. 

Oppression  by  officers.— Sec.  3969.  If  any  judge  or  other  officer  by  color  of 
his  office,  willfully  and  maliciously  oppress  any  person  iinder  pretense  of  acting  in  his 
official  capacity,  he  shall  be  punished  by  fine  not  exceeding  three  hundred  dollars 
and  imprisonment  in  the  county  jail  not  less  than  five  nor  more  than  thirty  days,  and 
be  liable  to  the  injured  party  for  any  damage  sustained  by  him  in  consequence 
thereof. 

Failing  to  pay  over  fees.— Sec.  3970.  If  any  justice  of  the  peace,  clerk  of  the 
district  or  other  court,  county  recorder,  or  any  other  officer  who  by  law  is  authorized 
to  receive  and  required  to  pay  over  fees  of  office,  or  who  is  ot  m&y  be  authorized  to 
impose  or  collect  fines,  shall  fail,  neglect,  or  refuse  to  pay  over  as  prescribed  or  as 
may  hereafter  be  prescribed  by  law,  all  such  fees  and  fines,  he  shall  be  deemed  guilty 
of  a  misdemeanor,  besides  being  liable  in  a  civil  action  for  the  amount  of  such  fines 
and  fees  as  he  may  have  thus  illegally  withheld  or  appropriated. 

Making  false  entries  in  relation  to  fees.- Sec.  3971.  If  any  justice  of  the  peace, 
clerk  of  the  district  or  other  court  which  is  now  or  may  hereafter  be  established,  county 
recorder,  or  other  officer,  who  by  law  is  authorized  or  required  to  keep  a  record  docket, 
or  who  is  or  may  be  required  to  keep  an  account  of  fees  or  fines,  and  to  pay  over,  or  in 
any  way  account  for  the  same,  shall  in  any  manner  falsify  such  docket  or  account,  or  shall 
fail,  neglect,  or  retuse  to  make  an  entry  upon  such  docket,  or  account  of  such  fees 
and  fines  as  are  required  to  be  paid  over  according  to  law,  such  justice  of  the  peace, 
clerk  of  the  district  court,  or  clerk  of  any  other  court,  county  recorder  and  other 
officer  shall  be  guilty  of  a  misdemeanor,  and  shall  be  subject  and  liable  to  be  prose- 
cuted therefor  in  any  court  having  jurisdiction  of  the  offense. 

Officers  appropriating  fees  to  their  own  use. — Sec.  3972.  Any  justice  of  the 
peace,  clerk  of  the  district  or  of  any  other  court  which  is  or  may  be  established, 
county  recorder,  or  other  officer  who  may  be  found  guilty  of  the  offense  of  appro- 
priating to  his  own  use  fees  of  office  or  fines  collected  for  violation  of  law,  or  of 
neglecting  to  pay  over  the  same  as  prescribed  by  law,  shall  be  removed  from  office 
by  the  court  before  or  by  whom  the  offense  may  be  tried  and  judgment  or  conviction 
had,  and  each  and  every  person  so  found  guilty  shall  be  punished  by  a  fine  not 
exceeding  three  hundred  dollars  nor  less  than  ten  dollars,  or  imprisonment  in  the 
county  jail  for  a  period  not  exceeding  one  year,  or  by  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court. 


EVIDENCE.  17 

Officers  to  report  fees  to  supervisors. — Sec.  3973.  All  officers  required  by 
the  provisions  of  this  code  to  collect  and  pay  over  fines  and  fees,  shall,  oh  the  first 
Monday  in  January  in  each  year,  make  report  thereof  under  oath  to  the  board  of 
supervisors  of  the  proper  county,  showing  the  amount  of  fines  assessed  and  the 
amount  of  fines  and  fees  collected,  together  with  the  vouchers  for  the  payment  of  all 
sums  by  him  collected,  to  the  proper  officer  required  to  keep  the  same. 

Clerks  and  justices  to  report  fines,  fees,  etc:  penalty  for  failure.— Sec.  3974. 
The  clerks  of  the  several  courts  of  this  state,  except  of  the  supreme  court,  and  all 
mayors  of  incorporated  towns  and  cities,  and  justices  of  the  peace,  shall  on  the  first 
Monday  of  January  of  each  year,  make  a  report  in  writing  to  the  board  of  super- 
visors of  their  respective  counties,  of  all  forfeited  recognizances  in  their  several 
offices ;  of  all  fines,  penalties,  and  forfeitures  imposed  in  their  respective  courts,  and 
which  by  law  go  into  the  county  treasury  for  the  benefit  of  the  school  fund ;  in  what 
cause  or  proceedings,  when,  for  what  purpose,  against  whom,  and  for  what  amount 
rendered;  whether  said  fines,  penalties,  forfeitures  and  recognizances  have  been  paid, 
remitted,  cancelled,  or  otherwise  satisfied  ;  if  so,  when,  how,  and  in  what  manner  ; 
if  not  paid,  remitted,  canceled,  or  otherwise  satisfied,  what  steps  have  been  taken  to 
enforce  the  collection  thereof,  and  the  prospect  of  such  collection.  Such  report 
must  be  verified  under  oath,  to  the  effect  that  the  same  is  full,  true,  and  complete  of 
the  matters  therein  contained,  and  of  all  things  required  by  this  section  to  be  report- 
ed ;  and  any  officer  failing  so  to  do  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof,  may  be  fined  in  any  sum  not  less  than  one  hundred 
dollars. 

Notary  public  exercising  improperly  duties  of  office. — Sec.  3975.  If  any 
notary  public  exercise  the  duties  of  his  office  after  the  expiration  of  his  commission, 
or  when  otherwise  disqualified,  or  appends  his  official  signature  to  documents  when 
the  parties  have  not  appeared  before  him,  he  shall  be  deemed  guilty  of  a  misde- 
meanor, and  be  punished  by  a  fine  of  not  less  than  fifty  dollars,  and  shall  also  be 
removed  from  office  by  the  governor. 

Failure  to  take  oath  before  entering  on  duties  of  office. — Sec.  3976.  If  any 
officer  or  person  willfully  fails  to  take  the  oath  required  by  law  before  entering  on  the 
discharge  of  the  duties  of  any  office,  trust,  or  station,  or  makes  any  contract  which 
contemplates  an  expenditure  in  excess  of  the  law  under  which  he  was  elected  or 
appointed,  or  fails  to  report  to  the  proper  officer  showing  the  expenditure  of  all 
public  moneys  with  proper  vouchers  therefor  by  the  time  required  by  law,  he  shall  be 
punished  by  a  fine  not  exceeding  five  thousand  dollars,  or  by  imprisonment  in  the 
penitentiary  not  exceeding  five  years,  or  by  both  at  the  discretion  of  the  court. 

IX.— EVIDENCE. 

General  provisions  of  the  Code,  in  reference  to  records, 
and  certified  copies  thereof  : 

Copies  of  record  and  entries.— Section.  3702.  Duly  certified  copies  of  all  records 
and  entries,  or  papers  belonging  to  any  p>.iblic  office,  or  by  authority  of  law  filed  to 
be  kept  therein,  shall  be  evidence  in  all  cases  of  equal  credibility  with  the  original 
record  or  papers  so  filed. 

Officer  to  give  copies. — Sec.  3706.  Every  officer  having  the  custody  of  a  public 
record  or  writing  is  bound  to  give  any  person,  on  demand,  a  certified  copy  thereof  on 
payment  of  the  legal  fees  therefor. 


Jo  COUNTY   OFFICERS. 

X.— RESISTANCE    TO    PROCESS    AND    SUPPRESSION 

OF   RIOTS. 

Calling  out  power  of  county.— Section.  4145.  Wlien  the  sheriffor  other  officer 
aiithonzed  to  execute  process,  finds  or  has  reason  to  apprehend,  that  resistance  will 
be  made  to  the  execution  thereof,  he  may  command  as  many  male  inhabitants  of  the 
county  as  he  may  think  proper,  and  any  military  companies  of  his  county,  armed 
and  equipped,  to  assist  him  in  overcoming  the  resistance,  and  if  necessary,  in  seizing, 
arresting,  and  confining  the  resisters,  and  their  aiders  and  abettors  to  be  punished 
by  law. 

Certify  to  court  names  of  resisters. — Sec.  4146.  The  officer  shall  certify  to 
the  court  from  which  the  process  issued,  the  names  of  the  resisters  and  their  aiders 
and  abettors,  to  the  end  that  they  may  be  punished  for  a  contempt. 

Refuses  to  assist. — Sec.  4147.  Every  person  commanded  by  a  public  officer  to 
assist  him  in  the  execution  of  process,  as  provided  in  section  four  thousand  one  hun- 
dred and  forty-five  of  this  chapter,  who,  without  lawful  cause,  refuses  or  neglects  to 
obey  such  command,  is  guilty  of  a  misdemeanor. 

When  power  of  county  not  sufficient.— Sec.  4148.  If  it  appear  to  the  govern- 
or that  the  power  of  any  county  is  not  sufficient  to  enable  the  sheriff  to  execute  pro- 
cess delivered  to  him,  he  may,  on  the  application  of  the  sheriff,  order  such  posse  or 
military  force  from  any  other  county  or  counties  as  is  necessary. 

Unlawful  assemblages. — Sec.  4149.  When  persons  to  the  number  of  twelve  or 
more,  armed  with  dangerous  weapons,  or  persons  to  the  number  of  thirty  or  more, 
whether  armed  or  not,  are  unlawfully  or  riotously  assembled  in  any  city  or  town, 
the  judges,  sheriff,  and  his  deputies  if  they  be  present,  the  mayor,  aldermen,  marshal, 
constables,  and  justices  of  the  peace  of  such  city  or  town,  must  go  among  the  per- 
sons assembled,  or  as  near  them  as  may  be  safe,  and  command  them  in  the  name  of 
the  state,  immediately  to  disperse. 

Arrest. — Sec.  4150.  If  the  persons  assembled  do  not  immediately  disperse,  the 
magistrates  and  officers  must  arrest  them,  that  they  may  be  punished  according  to 
law,  and  for  that  purpose  may  command  the  aid  of  all  persons  present  or  within  the 
county. 

Refusing  to  aid. — Sec.  4151.  If  any  person  commanded  to  aid  the  magistrate 
or  officer,  without  good  cause  neglect  to  do  so,  he  is  guilty  of  a  misdemeanor. 

Failure  of  duty. — Sec.  4152.  If  a  magistrate  or  officer  having  notice  of  an 
unlawful  or  riotous  assembly  as  above  provided  in  this  chapter,  neglect  to  proceed  to 
the  place  of  assembly,  or  as  near  thereto  as  he  can  with  safety,  and  to  exercise  the 
authority  with  which  he  is  invested  for  suppressing  the  same  and  arresting  the  persons, 
he  is  guilty  of  a  misdemeanor. 

Assembly  will  not  disperse. — Sec.  415.3.  If  the  persons  so  assembled  and 
commanded  to  disperse,  do  not  immediately  disperse,  any  two  of  the  magistrates  or 
officers  before  mentioned,  may  command  the  aid  of  a  sufficient  number  of  persons, 
and  may  proceed  in  such  manner  as,  in  their  judgment,  is  necessary  to  disperse  the 
assembly  and  arrest  the  offenders. 

When  armed  force  is  called  out. — Sec.  4154.  When  an  armed  force  is  called 
out  for  the  purpose  of  suppressing  an  unlawful  or  riotous  assembly,  or  arresting  the 
offenders,  it  must  obey  such  orders  in  relation  thereto  as  have  been  made  by  the 
governor,  or  by  a  judge  of  the  supreme,  district,  or  circuit  court,  a  sheriff  or  magis- 
trate, as  the  case  may  be. 


ELECTION — QUALIFICATION,    ETC.  19 


OHAPTEE  II. 


THE  CLERK. 

I.    HIS  ELECTION,  QUALIFICATION,  ETC. 

Election. — Each  county  is  required  to  elect  at  the  general 
election  in  each  even-numbered  year,  a  clerk  of  the  District  and 
Circuit  Courts.  Code  Sec.  589.  His  term  of  office,  in  case  of 
election  for  a  full  term,  commences  on  the  first  Monday  of  Janu- 
ary after  his  election,  provided  he  qualifies  according  to  law,  and 
continues  for  two  years,  and  until  his  successor  is  elected  and 
qualified,  unless  he  should  resign,  or  be  removed,  as  provided 
by  law. 

Qualification. — He  cannot  enter  upon  the  duties  of  his  office 
until  he  gives  a  bond  and  subscribes  to  an  oath  required  by  the 
constitution  of  the  State,  and  the  provisions  of  the  Code,  which 
may  be  found  in  Chapter  One. 

Official  Bond. — The  bond  should  be  in  a  penal  sum  to  be 
fixed  by  the  board  of  supervisors  of  the  county,  but  cannot  be  in 
a  less  sum  than  five  thousand  dollars.  Code,  Sec.  678.  And  his 
bond  should  be  given  with  at  least  two  sureties,  freeholders  of 
the  State,  and  be  approved  by  the  board  of  supervisors.  The 
approval  should  be  indorsed  on  the  bond,  and  signed  by  the 
president  of  the  board.  Code,  Sees.  679,  680.  He  should  qual- 
ify as  aforesaid,  by  the  first  Monday  of  January,  following  his 
election,  and  a  failure  to  qualify  shall  be  deemed  a  refusal  to 
serve.     Code,  Sees.  685,  686. 

Refusal  to  approve  the  bond. — If  the  board  refuse  or  neg- 
lect to  approve  the  bond,  the  clerk  may  proceed  as  directed  by 
Section  681,  of  the  Code,  found  in  Chapter  One. 


20  THE    CLERK. 

Construction  of  official  bonds. — The  bond  is  construed 
to  cover  any  duty  required  by  law,  subsequent  to  giving  it;  and 
it  is  not  void  for  want  of  compliance  wuth  the  statute,  but  is 
valid  in  law  for  the  matter  contained  therein.  Code,  Sees.  688,  089. 

In  case  of  re-election. — If  any  officer  is  re-elected,  he  is 
required  to  qualify  in  the  same  "way,  but  when  re-elected,  and  he 
has  public  funds,  or  property  in  his  control,  under  color  of  his 
office,  his  bond  shall  not  be  approved  until  he  has  produced,  and 
fully  accounted  for  such  funds  and  property  to  the  person  to 
whom  he  should  account  therefor  ;  and  the  officer  or  board 
approving  the  bond  shall  indorse  upon  it  before  its  approval,  the 
fact  that  said  officer  has  fully  accounted  for,  and  produced  all 
funds  and  property  before  that  time  under  his  control,  as  such 
officer. 

In  case  he  holds  over. — When  it  is  ascertained  that  the 
incumbent  holds  over  another  term,  by  reason  of  the  non-elec- 
tion of  a  successor,  or  by  reason  of  the  neglect  or  refusal  of  the 
person  elected  to  qualify,  the  incumbent  should  qualify  anew, 
within  the  time  to  be  fixed  by  the  officer  who  approves  the  bonds 
of  such  officers.     Code,  Sec.  690. 


FORM  OF  OFFICIAL  BOXD. 
No.  1. 

Know  all  men  hy  these  Presents  :  That  we,  A  B  as  principal, 

and  C  D  and  E  F,  as  sureties,  of  the  county  of ,  and 

State   of  Iowa,  are  held  and  firmly   bound   unto  the  county   of 

,  in  said  State,  in  the  penal  sum  of dollars,  for 

the  payment  of  which  we  bind  ourselves  firmly  by  these  presents. 

The  above  bond  is  to  be  void  upon  condition  that  the  said 
A  B,  as  clerk  of  the  District  and  Circuit  Courts  of  said  county, 
(or  as  sheriff  or  treasurer,  or  auditor  or  other  officer,  accord- 
ing to  the  fact,)  will  render  a  true  account  of  his  said  office  and 
his  doings  therein,  to  any  person  or  board,  or  officer  whenever 
he  may  be  lawfully  required  so  to  do  ;  that  he  will  promptly  pay 
over  and  deliver  to  the  person  or  officer  entitled  thereto,  all  money 
and  property  that  may  come  into  his  hands  by  virtue  of  said 
office;  that  he  will  promptly  account  for  all  balances  of  money, 
and  all  property  remaining  in  his  hands  at  the  termination  of  his 
office;  that  he  will  hereafter  exercise  all  reasonable  diligence, 
and  care  in  the  preservation  and  lawful  disposal  of  all  money, 
books,  papers,  securities,  or  other  property  appertaining  to  his 
said  office,  and  deliver  them  to  his   successor,  or  to  any  any  other 


FOEM  OF  OFFICIAL  OATH APPROVAL  OF  BOND.       21 

person  authorized  to  receive  the  same;  and  that  he  will  faithfully 
and  impartially,  without  fear,  favor,  fraud  or  oppression  discharge 
all  the  other  duties  now,  or  hereafter  required  of  his  said  office 
by  law. 

Witness  our  hands  this  ....  day  of ,  18 . . 

A....   B.... 

C...   D.... 

E  ...  F.... 


FORM  OF  OFFICIAL  OATH. 
No.  2. 

State  of  Iowa,        , 

'        '-  ss. 


County. 


,\ 


I,  A  B,  do  solemnly  swear  that  I  will  support  the  constitu- 
tion of  the  United  States,  and  the  constitution  of  the  State 
of  Iowa,  and  that  to  the  best  of  my  knowledge  and  ability,  I  will 
perform  all  the  duties  of  the  office  of  clerk  of  the  District  and 
Circuit  Courts  of county,  State  of  Iowa,  now,  or  here- 
after required  by  law.  A ....    B . 

Subscribed  and  sworn  to  before  me,  this  ....  day  ....  A.  D., 
18....  C...  D.... 


FOEM  OF  APPROVAL  OF  BOND. 
N"o-  3. 


State  or  Iowa,      , 

'      '  ss. 


County,  j 

I,  J  C,  chairman  of  the  board  of  supervisors  of  said  county, 
hereby  certify  that  the  foregoing,  (or  within)  bond  of  A  B, 
as  clerk,  etc.,  and  the  sureties  thereto,  were  this  day  approved  by 
the  said  board. 

Dated  this  . day  of  . . . . ,  18 . . . . 

J C   . . . . ,  Chairman. 


Extent  of  liability  of  sureties. — The  official  bond  of  a 

puljlic  officer  is  construed  as  a  security  to  the  body  politic  or 
civil  corporation  of  which  he  is  an  officer,  and  also  to  all  the 
members  thereof  severally,  who  arc  intended  to  be  thereby 
secured.  And  a  judgment  in  favor  of  a  party  for  one  delinquency 
does  not  preclude  the  same  or  another  party  from  maintaining  an 
action  on  the  same  for  another  delinquency,  except  that  sureties 
can  be  made  liable  in  the  aggregate  only  to  the  extent  of  their 
undertaking.     Code,  Sees.  3308,  33G9. 


22  THE    CLERK. 

II.     VACANCIES,  AND  REMOVAL    AND  SUSPENSION 
FROM  OFFICE. 

Vacancies . — Vacancies  occurring  fifteen  days  prior  to  a  gen- 
eral election,  should  be  filled  at  said  election.  Code,  Sec.  789. 
The  provisions  of  the  Code  relating  to  vacancies,  and  removal  and 
suspension  from  office  may  be  found  in  Chapter  One. 

Rig'llt  to  resign- — The  right  to  resign  and  vacate  an  office  is 
clearly  recognized  in  this  State.  The  tendering  of  a  resignation 
of  a  public  office  in  writing  to  the  officer  authorized  by  law  to 
receive  it,  and  the  filing  of  the  same  without  objection  by  such 
officer,  operate  to  vacate  the  office  resigned,  according  to  the 
tenor  of  the  resignation  ;  and  the  officer  to  whom  the  resignation 
is  by  law  to  be  made,  cannot  forbid  it  or  refuse  to  receive  it.  12 
Iowa,  405. 

.       III.     DEPUTIES. 

The  clerk  may  appoint. — The  general  provisions  of  the 
Code  in  reference  to  deputies  may  be  found  in  Chapter  One. 

The  clerk  may  in  writing  appoint  a  deputy,  for  whose  acts  he 
is  responsible,  and  from  whom  he  is  required  to  take  a  bond  for  the 
faithful  discharge  of  his  duties.  The  bond  should  be  satisfactory 
to  the  principal,  but  need  not  be  otherwise  approved  ;  but  the 
appointment  should  be  approved  by  the  officer  who  has  the 
approval  of  the  principal's  bond  ;  and  the  appointment  may  be 
revoked  at  any  time  by  a  writing  under  the  principal's  hand,  and 
both  the  appointment  and  the  revocation  should  be  filed  and  kept 
in  the  office  of  the  auditor  of  the  county  when  it  relates  to  a 
county  office.     Code,  Sec.  7G6. 

FORM  FOR  THE  APPOINTMENT  OF  DEPUTY. 
State   op   Iowa, 


..  County,  [  ' 


To  the  Board  of  Supervisors  of  said  county  : 

I,  J  C,  clerk  of  the  District  and  Circuit  Courts  of  said, 
county,  (or  sheriff,  treasurer,  or  other  officer),  do  hereby  certify, 
that   I     hereby   appoint    E    F,  my    deputy   clerk   in    and    for 


FORM    OF    APPEOVAL    OF    APPOINTMENT REVOCATION.  23 

said  county,  and  that  he  has  given  a  satisfactory  bond,  duly 
approved  by  me  as  required  bylaw.  Said  appointment  is  subject 
to  your  approval. 

Witness  my  hand  this  ....  day  of  . . . . ,  18 .  . . 

J....  C  ...,  Clerh. 

TIl6  approval. — The  approval  of  the  appointment  should  be 
by  the  board  of  supervisors  of  the  county,  and  in  analogy  to  the 
requirements  in  relation  to  the  approval  of  bonds,  the  better 
practice  would  be  to  have  the  approval  indorsed  on  the  appoint- 
ment, and  certified  by  the  chairman  of  the  board. 

FOKM  OP  APPEOVAL  OF  APPOINTMENT. 
State  of  Tow  a. 


County,  '\ 


I,  H  S,  chairman  of  the  board  of  supervisors  of  said 
county,  hereby  certify  that  the  appointment  by  J  C, 
clerk,  etc.,  of  E  F,  as  his  deputy,  etc.,  as  shown  by  the 
above  (or  within)  certificate  of  his  appointment,  was  this  day  duly 
approved  by  said  board. 

Witness  my  hand  this day  of ,  18. .. 

J .  —  (J   . . . ,  Chairman. 

Official  oath. — The  usual  official  oath  taken  and  subscribed 
by  the  deputy  should  be  indorsed  on  the  appointment  and  filed 
with  the  auditor. 

Revocation  and  removal. — The  appointment  is  at  any  time 
revocable  by  the  principal  in  writing,  and  should  also,  like  the 
appointment,  be  filed  in  the  office  of  the  county  auditor.  This  is 
necessary  and  important,  that  the  public  may  know  who  is  law- 
fully authorized  to  act  as  deputy. 

FORM  OF  REVOCATION. 

To  the  Auditor  of County^  lowa^  and  all  others  whom  it 

m,ay  concern : 
I,  J  C,  clerk  of  the  District  and  Circuit  Courts  of  said  county, 
(or  sheriff  or  treasurer  or  other  officer  as  the  case  may  be),  here- 
by revoke  the  appointment  of  E    F  as  my  deputy  in  said  county. 
Said  revocation  to  take  effect  at  this,  (or  some  future)  date. 
Dated  this day  of 18. .  J C ,  Clerk. 


24  THE   CLERK. 

The  power  of  removal  important. — The  power  of  removal 

of  deputies  by  the  principal  is  absolute  and  unqualified,  and  is 
demanded  by  considerations  of  private  security  and  public  policy. 

Deputy  to  give  l)oii(l  to  the  principal. — The  deputy  is 

required,  as  we  have  seen,  to  give  a  bond  to  the  principal;  but 
it  need  not  be  filed  in  the  office  of  the  auditor  or  approved  by 
the  board  of  supervisors.  It  is  intended  for  the  protection  of 
the  principal  and  his  sureties,  who  are  alone  liable  for  the  acts  of 
the  deputy.     13  Iowa,  346. 

Powers  of  the  deputy. — The  deputy  is  vested  with  the 
general  powers  of  the  principal,  and  may  do  any  act  in  the  name 
of  the  principal  which  the  principal  could  do,  except  when  he  is 
required  to  act  in  conjunction  with,  or  in  the  ])lace  of  another 
officer.  Code,  Sec.  707.  The  acts  of  the  deputy  are  the  acts  of 
the  principal,  and  unless  he  is  removed,  his  authority  continues 
as  long  as  the  authority  of  the  principal.  This  is  in  accordance 
with  the  statute,  and  the  principles  of  the  common  law,  7  Com. 
Dig.,  543;  Chit.  Black.  260,  and  notes. 

Applicable  to  the  deputies  of  all  officers.— The  pro- 
visions of  the  Code  with  the  general  principles  of  law  and  the 
directions  furnished  herein  in  reference  to  deputies,  apply  to  all 
other  officers  authorized  under  the  statute,  to  appoint  deputies. 

When  a  new  bond  is  required. — In  certain  cases  provi- 
ded for  by  the  Code,  a  new  official  bond  may  be  required  of  offi- 
cers. The  duty  of  the  officer  in  such  case  is  sufficiently  pointed 
out  by  the  statutes,  which  may  be  found  in  the  first  chapter  of 
this  volume.  If  a  new  bond  is  required,  it  should  be  approved, 
indorsed  and  filed,  as  required  in  case  of  original  bonds;  but  no 
new  oath  of  office  would  be  required. 


STATUTES    UELATING    TO    DUTIES    OF    CLERK.  25 


CHAPTEH  III. 


THE  CLERK'S  DUTIES. 


I.     STATUTES  RELATING  THERETO. 

The  general  provisions  of  the  Code,  in  reference  to  the  duties 
of  the  clerk,  are  as  follows  : 

Of  circuit  court. — Section  193.  The  clerk  of  the  district  court  is,  by  virtue  of 
his  office,  clerk  of  the  circuit  court. 

Official  duty. — Sec.  194.  He  shall  keep  his  office  at  the  county  seat ;  shall  attend 
the  sessions  of  the  district  and  circuit  courts  himself,  or  by  deputy  ;  keep  the  records, 
papers,  and  seals  of  both  courts,  and  i;ecord  their  proceedings  as  hereinafter  directed 
under  the  direction  of  the  judges  of  each  court  respectively. 

How  designated. — Sec.  195.  The  clerk  of  the  district  court  shall,  while  acting 
as  clerk  of  the  circuit  court,  be  known  and  designated  as  "  clerk  of  the  circuit  court ;" 
and  in  all  certificates  and  records  relating  to  said  court,  signed  by  him,  he  shall  so 
designate  himself.  The  deputy  of  the  clerk  of  the  district  court  may  perform  any  of 
the  duties  required  by  the  clerk  of  the  district  court,  to  be  performed  in  and  for  said 
circuit  court :  and  may  sign  all  certificates  and  records  thereof,  in  the  same  manner 
and  with  the  same  force  and  effect  as  the  clerk  of  the  district  court. 

Records  consist  of. — Sec.  196.  The  records  of  each  court  consist  of  the  original 
papers  constituting  the  causes  adjudicated  or  pending  in  that  court,  and  the  books 
prescribed  in  the  next  section. 

Books  kept. — Sec.  197.  The  clerk  is  required  to  keep  the  following  books  for  the 
business  of  the  district  and  circuit  courts  severally  : 

1.  A  book  containing  the  entnes  of  the  proceedings  of  the  court,  which  may  be 
known  as  the  "record  book,"  and  which  is  to  have  an  index  referring  to  each  pro- 
ceeding in  each  cause  under  the  name  of  the  parties,  both  plaintiff  and  defendant, 
and  under  the  name  of  each  person  named  in  either  party  ; 

2.  A  book  containing  an  abstract  of  the  judgments,  having  in  separate  and  appro- 
priate columns  the  names  of  the  parties,  the  date  of  the  judgment  the  damages  recov- 
ered, costs,  the  date  of  the  issuance  and  return  of  executions,  with  the  entry  of  satis- 
faction and  other  memoranda;  which  book  maybe  known  as  the  "judgment  docket," 
and  is  to  have  an  index  like  that  required  for  the  record  book  ; 

3.  A  book  in  which  to  enter  in  detail  the  costs  and  fees  in  each  action  or  proceed- 
ing under  the  title  of  the  same,  with  an  index  like  that  required  above,  and  which 
may  be  known  as  the  "  fee  book ;  " 

4.  A  book  in  which  to  enter  the  following  matters  in  relation  to  any  judgment 


26  THE  clerk's  duties. 

under  which  real  property  is  sold,  entering  them  after  the  execution  is  returned — ■ 
the  title  of  the  action,  the  date  of  the  judgment,  the  amount  of  damages  recovered, 
the  total  amount  of  costs,  and  the  officer's  return  in  full — which  book  may  be  known 
as  the  "sale  book,"  and  is  to  have  an  index  like  those  required  above; 

5.  A  book  in  which  to  make  a  complete  record  when  required  by  law; 

6.  A  book  to  be  called  the  "  incumbrance  book,"  in  which  the  sheriff  shall  enter 
a  statement  of  the  levy  of  every  attachment  on  real  estate,  as  required  by  Part  III. 
of  this  code  ; 

7.  A  book  to  be  known  as  the  "  appearance  docket,"  with  an  index  to  the  same, 
in  which  all  actions,  entered  in  said  docket  shall  be  indexed  directly  in  the  name  of 
each  plaintiff;  and  reversely  in  the  name  of  each  defendant  therein  : 

8.  A  book  in  which  an  index  of  all  liens  in  district  or  circuit  courts  shall  be  kept. 
Appearance  docket. — Sec.  198.     The  clerk  shall  enter  in  said  appearance  docket, 

each  suit  that  shall  be  brought  in  the  court,  numbering  them  consecutively  in  the 
order  in  which  they  shall  have  been  commenced,  which  number  shall  not  be  changed 
during  the  further  progress  of  the  suit.  In  entering  the  suits,  the  clerk  shall  set  out 
the  full  name  of  all  the  parties,  plaintiffs  and  defendants,  as  contained  in  the  petition, 
or  as  subsequently  made  parties  by  any  pleading,  proceeding,  or  order,  and  shall  give 
the  date  of  the  filmg  of  the  petition. 

Sec.  199.  When  the  original  notice  shall  be  returned  to  the  office  of  the  clerk,  he 
shall  enter  in  said  docket  so  much  of  the  return  thereon  as  to  show  who  of  the  par- 
ties have  been  served  therewith,  and  the  manner  and  time  of  service. 

Sec.  200.  The  clerk  shall,  immediately  upon  the  filing  thereof,  make  in  the 
appearance  docket  a  memorandum  of  the  date  of  the  filing  of  all  petitions,  demur- 
rers, answers,  motions,  or  paper  of  any  other  description  in  the  cause:  and  no  plead- 
ing of  any  description  shall  be  considered  as  filed  in  the  cause,  or  be  taken  from  the 
clerk's  office,  until  the  said  memorandum  is  made. 

Sec.  201.  Immediately  upon  the  sustaining  or  overruling  of  any  demurrer  or 
motion  ;  the  striking  out  or  amendment  of  any  pleading  ;  trial  of  the  cause  ;  rendi- 
tion of  the  verdict;  entry  of  judgment;  issuing  of  execution,  or  any  other  act  or 
thing  done  in  the  progress  of  the  cause,  the  like  memorandum  thereof  shall  be  made 
in  said  docket,  giving  the  date  thereof,  and  the  number  of  the  book  and  page  of  the 
record  where  the  entry  thereof  shall  have  been  made,  it  being  intended  that  the 
appearance  docket  shall  be  an  index  from  the  commencement  to  the  end  of  a  suit. 

Records  of  hoth  courts  kept. — Sec.  202.  The  district  and  circuit  judges  of  any 
county,  may,  by  a  joint  order  under  their  hands,  direct  that  the  records  and  minutes 
of  both  courts  be  kept  in  one  set  of  books.  But  all  matters  touching  decedents' 
estates,  wills,  administrations,  guardians  and  heirs,  and  all  business  relating  thereto 
transacted  in  the  circuit  court,  and  also  the  record  of  marriage  licenses,  shall  be  kept 
separate,  in  proper  books  prepared  for  that  purpose,  as  heretofore. 

Eeport  criminal  returns. — Sec.  203.  The  clerk  of  the  district  court  is  required 
to  report  to  the  secretary  of  state,  on  or  before  the  first  Monday  in  November  of  each 
year,  the  number  of  convictions  for  all  crimes  and  misdemeanors  in  that  court  in  his 
county  for  the  year  preceding;  and  such  report  shall  show  the  character  of  the 
offense  and  the  sentence  of  punishment,  the  occupation  of  the  convict,  whether  he  can 
read  and  write,  his  general  habits,  and  also  the  expenses  of  the  county  for  criminal 
prosecutions  during  the  year,  including,  but  distinguishing,  the  compensation  of  the 
district  attorney. 

Not  act  as  attorney. — Sec.  204.  The  clerk,  or  deputy  clerk  of  the  district  court 
is  prohibited  from  holding  the  office  of  justice  of  the  peace,  or  practicing,  directly  or 
indirectly,  as  an  attorney  or  solicitor  in  the  district  or  circuit  court. 


THE   RECORDS.  37 

II.    THE  RECORDS. 

Among  the  duties  prescribed  by  the  statute,  we  find  he  is 
required  to  keep  the  records,  papers,  and  seals  of  the  District 
and  Circuit  Courts.  The  records  consist  of  the  original  papers  in 
causes  adjudicated  or  pending,  and  the  books  prescribed  by  the 
statute. 

Record  book. — The  most  important  of  these  books  is  the 
"  Record  Book,"  in  which  he  is  required  to  record  the  proceed- 
ings of  the  court.     This  should  contain  in  full  all  the  jDroceedings. 

Opening  of  the  court. — At  the  beginning  of  each  term,  the 
clerk  should  therein  record  the  presence  of  the  judge  and  other 
officers  of  the  court  in  attendance  on  the  same,  the  time  of  open- 
ing the  court,  and  the  proceedings  of  the  court  in  its  order,  such 
as  the  impaneling  of  the  grand  and  trial  juries,  the  rulings  of  the 
court  and  proceedings  therein,  and  the  orders  and  decisions  of  the 
court  on  motions  and  demurrers;  and  the  judgments  of  the  court 
on  verdicts  of  the  trial  jury,  and  on  trials  to  the  court. 

Judge's  minutes. — A  brief  minute  of  the  orders  and  judg- 
ments of  the  court  is  usually  made  by  the  judge  in  each  cause, 
on  a  calendar  of  the  causes  furnished  him  by  the  clerk;  from  this 
calendar  the  clerk  usually  transcribes  these  entries  on  one  kept  by 
himself  for  his  own  convenience;  and  from  these  transcribed 
minutes  he  writes  up  the  record  relating  thereto. 

Orders  and  decisions. — The  ingenuity  and  resources  of  the 
clerk  are  frequently  taxed  to  the  greatest  extent  to  place  these 
orders  and  decisions  in  proper  form  on  the  record,  so  as  to  embrace 
all  that  is  intended  and  required,  and  avoid  superfluous  and  use- 
less matter. 

Uniformity  of  records. — The  records  in  similar  cases  are 
usually  in  a  certain  uniform  and  stereotyped  language,  which  is 
very  common  in  legal  papers  and  records,  and  is  adopted  for  its 
convenience  and  accuracy. 

Forms  of  entry  in  important  cases. — In  unusual,  import- 
ant and  complicated  cases,  forms  for  entry  of  orders,  judgments, 
and  decrees  on  the  records,  are  usually  furnished  the  clerk  by  the 
attorney  of  the  prevailing  party;  and  this  is  the  proper  practice, 


28  TnE  clerk's  duties. 

as  it  would  in  such  cases  be  usually  unsafe  to  trust  to  the  clerk, 
who  may  have  little  acquaintance  with  legal  forms  and  the  require- 
ments in  such  cases.  And  in  all  cases  these  forms  of  entry  should 
be  submitted  to  the  opposing  counsel  for  his  approval. 

To  record  the  names  of  jurors. — At  the  opening  of  the 

court  at  which  grand  and  trial  jurors  are  required  to  appear,  the 
clerk  should  call  the  jurors  summoned,  and  the  names  of  those 
who  appear  should  be  entered  on  the  record  as  hereinafter  set 
forth. 

III.    FORMS  OF  RECORD  ENTRIES. 

OBGANIZATIOX  OF  THE  COUKT. 
No,  5. 

Statb  of  Iowa, County  District  Court, 

Term,  187. .,  First  day. . .  .187. . 

State  of  Iowa,      ) 

County,     ) 

J^e  it  Remembered^  that  on  this. . .  .Monday  of. . . .,  A.  D. 
187 . . ,  it  being  the ....  day  of. ... ,  187 . . ,  at  the  court  house  in 
said  county  was  begun  and  holden  a  District  Court  of  said  State, 
within  and  for  said  county,  in  the  ....  judicial  district  of  said 
State,  at  which  are  present: 

The  Honorable  J  H  R,  sole  Presiding  Judge; 
W   G    G,  District  Attorney  for  said  district; 
A   J    B,  Sheriff  of  said  county; 
J    C    D,  Clerk  of  said  court. 

The  following  officers  are  also  in  attendance  on  said  court,  as 
bailiifs,  to-wit  : 

S    D   P,  in  attendance  upon  the  grand  jury  ; 
S    P    S,  in  attendance  upon  the  trial  jury; 
D  W   X,  in  attendance  upon  the  court. 

And  the  court  being  duly  organized,  is  thereupon  duly  opened 
by  proclamation  of  the  sheriff,  and  the  following  proceedings  had  : 

Sheriff's  return  of  summons  of  grand  jurors — 

The  sheriff,  by  virtue  of  a  precept  to  him  duly  directed  and 
delivered,  makes  return  thereof  in  open  court,  from  which  it 
appears  that  the  following  named  persons  were  duly  summoned 
as  grand  jurors  for  this  term  of  court,  and  appear  on  the  call  of 
their  names,  and  take  their  seats  in  the  jury  box,  to-wit  :  [Here: 
insert  the  names  of  the  fifteen  jurors  summoned,  and  who  appear  ; 


FOEMS   OF   PvECOED   ENTRIES.  29 

if  less  than  fifteen  appear,  the  court  should  order  the  sheriff 
to  summon  a  sufficient  number  of  persons  to  complete  the  panel, 
which  facts  should  appear  in  the  record.]     Code,  Sec.  4256. 

Motion  to  set  aside  the  precept,  etc. — 

And  thereupon  the  district  attorney,  "W  G  T,  files  a 
motion  to  set  aside  the  precept  under  which  the  grand 
jurors  were  summoned,  and  for  an  order  that  a  new  precept  issue 
to  the  sheriff  to  svimmon  forthwith  a  sufficient  number  to  make  a 
panel  for  this  term  of  court,  for  the  reason  that  said  jurors  were 
not  duly  selected  and  drawn. 

Precept  set  aside,  and  a  new  precept  issued  — 

Whereupon  the  court  having  examined  the  evidence  in  relation 
thereto,  and  duly  considered  the  premises,  sustains  said  motion, 
and  it  is  ordered  by  the  court  that  said  precept  be  set  aside,  and 
that  the  clerk  issue  a  new  precept  to  the  sheriff,  commanding  him 
to  summon  forthwith  from  the  body  of  the  county,  fifteen  persons, 
duly  qualified  to  serve  as  jurors  during  this  term.  And  thereupon 
said  precept  is  issued,  and  said  jurors  are  summoned  and  appear 
in  open  court  and  answer  to  their  names,  and  take  seats  in  the 
jury  box,  to-wit  :     [Here  insert  the  names  of  the  jurors.] 

Opportunity  given  parties  to  object — 

And  thereupon  opportunity  is  given  by  the  court  to  par- 
ties held  to  appear  at  this  court  on  criminal  charges,  to  inter- 
pose objections  to  said  jurors.  Whereupon  E  K,  Esq.,  attorney 
for  C  D,  a  defendant  held  to  appear  at  this  term  of  court  on  a 
criminal  charge,  having  examined  said  jurors  under  oath,  doth 
interpose  and  challenge  one  of  the  jurors  aforesaid,  to-wit:  E  F, 
on  the  ground  that  he  is  the  prosecutor  in  the  charge  against  said 
C  D,  (or  has  formed  or  expressed  such  an  opinion  as  to  the  guilt  of 
the  defendant  as  would  prevent  him  from  rendering  a  true  verdict 
upon  the  evidence  submitted  on  a  trial;  or,  that  he  is  a  minor, 
insane,  or  otherwise  not  competent  in  law  to  serve  as  such  juror.) 
And  the  court  having  heard  the  evidence  relating  to  said  chal- 
lenge, sustains  the  same,  and  orders  and  directs  that  said  juror 
shall  not  be  present  nor  take  any  part  in  the  consideration  of 
the  charge  against  the  said  defendant  C  D;  and  thereupon,  by 
order  of  the  court,  another  juror  was  duly  summoned  by  the  sher- 
iff to  fill  the  panel  on  the  examination  of  the  charge  against  said 
defendant  ])efore  said  jury,  (or  in  case  the  objection  relates  to 
his  want  of  qualification  in  general,  the  court  should  discharge 
said  juror)  to-wit:  E  F,  duly  qualified  to  serve  as  grand  juror 
as  aforesaid,  on  the  examination  of  the  charge  against  the  said 
defendant,  before  the  grand  jury  in  the  place  of  A  B,  challenged 
as  aforesaid,  (or,  in  case  said  A  15  is  discharged  for  general  incom- 
petency, the   record  should  show  that  the  said  E   F  was    duly 


30  THE  clerk's  duties. 

selected  and  sworn  as  a  grand  juror  in  the  place  of  the  said 
A   B). 

Jury  organized,  sm'Orn  and  charged 

And  thereupon  no  further  challenge  being  made  to  the  panel, 
or  to  the  individual  jurors,  fifteen  good  and  lawful  men,  electors 
of  the  State,  selected,  drawn  and  summoned  as  aforesaid,  and 
duly  qualified  as  jurors,  the  court  appoints  C  L  as  foreman  of 
said  grand  jury,  and  said  foreman  is  duly  sworn,  and  said  grand 
jurors  are  duly  sworn.  x\nd  said  grand  jurors  being  thus  duly 
selected,  drawn,  summoned,  impaneled  and  sworn  as  aforesaid, 
are  charged  by  the  court,  and  retire  to  the  grand  jury  room  with 
a  sworn  bailiff,  to  inquire  of  and  concerning  matters  and  things  that 
may  lawfully  come  before  them. 

Precept  for  trial  jurors  returned — 

And  thereupon   the   sheriff,  aforesaid,  returns  into  open  court 

the  precept  duly  issued  and  delivered  to  him  to  summon 

persons  to  act  as  trial  jurors  at  this  term  of  the  court,  from  which 

it  appears  that  said persons  have  been  duly  summoned, 

and  said  persons  being  duly  called,  appear  and  take  their  seats  in 
the  jury  box,  to- wit:  [Here  insert  the  names  of  the  persons 
appearing.  If  the  full  number  summoned  as  directed  do  not 
appear,  the  clerk  should  draw  from  the  box  of  ballots  containing 
the  names  of  persons  selected  for  that  purpose,  the  requisite 
number  of  persons  to  supply  the  deficiency,  and  they  should  be 
summoned  by  the  sheriff,  on  a  precept  issued  for  that  pur- 
pose, as   in   the  first  instance].     Code,  Sec.  232. 

Panel  or  trial  jurors  duly  organized — 

And  thereupon  said  panel  of  trial  jurors  being  duly  summoned 
and  completed,  the  following  proceedings  were  had: 

RECORD  ENTRY  IX  A  CRIMINAL  CAUSE  ON  A  PLEA  OF  GriLTY. 
No.  6. 

The  State  of  Iowa 

V. 

M....    W  ... 

Now,  to-wit:  this day  of   ,  187.,  this  cause  comes 

on  to  be  heard,  G  W  T,  Esq.,  district  attorney,  appear- 
ing for  the  State,  and  the  defendant  appearing  in  person,  and 
also  by  M  &  M,  his  attorneys.  Whereupon  the  defendant 
is  arraigned,  says  he  is  indicted  by  his  true  name,  and  pleads 
guilty  to  the  charge  of  keeping  a  nuisance,  as  set  forth  in  the 
indictment  herein. 

And   afterwards,  to-wit:    ,  187.,  this  cause   comes 

up  for  the  judgment  of  the  court  herein. 


POEMS  or  RECORD  ENTRIES.  31 

Whereupon  the  defendant  is  informed  of  the  nature  of  the 
indictment  and  of  his  plea,  and  is  asked  whether  he  has  any  legal 
cause  to  show  why  judgment  should  not  be  pronounced  against 
him. 

And  it  appearing  that  no  legal  cause  exists  why  judgment 
should  not  be  pronounced: 

It  is  therefore  ordered  and  adjudged  by  the  court,  that  said 
defendant  pay  a  fine  of  ....  dollars  and  the  costs  of  this  prose- 
cution, taxed  at  $.  . . . ,  and  that  in  default  of  the  payment  of  said 
fine,  he  be  committed  to  the  jail  of  this  county  for....  days, 
unless  said  fine  be  sooner  paid. 


EECOED  IX  A  CRIMINAL  CAUSE  TEIED  BY  A  JURY. 
No.  7. 

The  State  of  Iowa, 

V. 

J....   M.... 

Now,  to- wit  :  this. . . . day  of . . . .  187 . . ,  this  cause  comes  on  to 
be  heard,  W  G  T,  district  attorney,  appearing  for  the  State, 
and  T  R  E,  Esq.,  appearing  for  the  defendant. 

Issue  being  joined,  a  jury  is  called  to  try  the  sa,me,  to- wit  : 
[Here  insert  the  names  of  the  twelve  jurors.]  Twelve  good  men 
and  lawful  jurors,  duly  impaneled  and  sworn  to  well  and  truly 
try  said  issue. 

The  evidence  on  the  part  of  the  plaintiff  and  defendant  being 
adduced,  the  cause  is  argued  by  the  respective  counsel,  and  fully 
submitted. 

The  court  duly  instructs  the  jury  in  the  premises,  and  they 
retire  to  their  room,  under  the  charge  of  a  sworn  bailiff  to  con- 
sider on  their  verdict. 

And  afterwards,  to-wit  :  on  the  same  day  the  jury  return  with 
their  verdict  into  oj^en  court,  and  in  the  presence  of  the  counsel 
aforesaid  (if  the  indictment  is  for  a  felony  the  defendant  should 
be  present,  and  the  record  should  so  state),  and  say,  that  they 
find  the  defendant  guilty. 

Whereupon  the  defendant,  by  his  counsel,  T  R  E,  files  a 
motion  for  a  new  trial  herein. 

And  afterwards,  on  the  . .  .day  of. . .  .187. .,  this  cause  comes 
up  for  a  hearing  on  the  motion  for  a  new  trial,  and  the  court  hav- 
ing heard  the  arguments  of  the  counsel  thereon,  the  motion  is 
overruled  by  the  court,  to  which  decision  the  counsel  for  the 
defendant  duly  excepts. 

And  afterwards,  to-wit  :  this.  .  .  .day  of.  . . .,  187.  .,  this  cause 
comes  up  before  the  court  f<jr  judgment  therein,  and  the  defend- 
ant being  present  is  informed  by  the  court  of  the  nature  of  the 
indictment,  his  plea,  and  the  verdict  of  the  jury  thereon,  and  the 
defendant  is  asked  whether  he  has  any  legal  cause  to  show  why 
judgment  should  not  be  pronounced  against  him  thereon.      And 


32  THE  clerk's  duties. 

no  legal  cause  being  shown  against  the  same,  it  is  therefore 
ordered  and  adjudged  by  the  court,  that  the  defendant  pay  a  fine 
of  . . .  dollars,  and  the  costs  of  this  prosecution  taxed  at  $ .  . . .  ; 
and  that  in  default  in  the  payment  of  said  fine,  he  be  committed 
to  the  jail  of ...  .county.  State  of  Iowa,  for  the  term  of.... 
da^'s,  unless  said  fine  be  sooner  paid. 

RECORD  ENTRY  IN  A  CITIL  CAUSE  TRIED  BY  THE  COURT. 
No,  8. 

M W ) 

V.  y 

W M ) 

Now,    to- wit:    this    ....    day  of    ,  1874,  this   cause 

comes  up  to  be  heard  on  the  demurrer  to  plaintiff's  petition,  J. 
L.  S.,  Esq.,  appearing  as  attorney  for  plaintiff,  and  S.  T.  P., 
Esq.,  as  attorney  for  the  defendant.  And  the  court  having  heard 
the  arguments  of  the  respective  attorneys,  overrules  the  demurrer; 
and  thereupon  the  defendant  files  his  answer.  Issue  being  joined 
and  a  jury  being  waived,  this  cause  by  consent  of  the  parties  is 
tried  to  the  court;  and  thereupon  the  testimony  for  the  plaintiff 
and  the  defendant  is  adduced  to  the  court  and  the  court  having 
heard  the  arguments  of  counsel  for  the  respective  parties  finds 
for   the   plaintiff  for  the   amount   due   on   one   promissory  note, 

to-wit:  the  sum  of     dollars. 

It  is  therefore   adjudged  by  the   court  that  the   plaintiff   have 

and  recover  of  the  defendant dollars,  and  costs  herein 

taxed  at  $ . . . 


ENTRY  JUDGMENT  ON  NOTE  AND  DECREE  OP  FORECLOSURE,  AFTER 

DEFAULT. 
No.  9. 

R....  R... 

V. 

J....  D... 

Now,  to-wit:    this   day  of   ,    187.,  this  cause 

comes  on  to  be  heard,  J  L  S,  Esq,,  appearing  for  the  plaintiff, 
and  no  one  for  the  defendant.  And  it  appearing  to  the  court 
that  the  defendant  is  in  default  herein,  the  evidence  for  the  plain- 
tiff is  heard  by  the  court.  And  it  appearing  to  the  court  that  the 
plaintiff's  cause  of  action  is  founded  upon  a  promissory  note;  that 
the  same  is  due  and  unpaid,  and  amounting  to  ....  dollars, 
and  that  the  sarrie  is  secured  by  a  mortgage  upon  property  here- 
inafter described. 

It  is  therefore  ordered    and  adjudged  by  the  court,  that  the 
plaintiff,    R     R,    have    and    recover    of     the     defendant,    J   D, 

said  sum   of dollars,    together   with  interest  to  accrue 

thereon  at  the  rate  of  ten  per  centum  per  annum,  and  the  costs 
herein  taxed  at  $ . . . 


FORMS  OP  RECORD  ENTRIES.  33 

And  it  is  further  adjudged  and  decreed,  that  the  mortgage 
aforesaid  be  foreclosed,  and  that  a  special  execution  issue  against 
the  mortgaged  premises,  to-wit:    [Here  describe  the  premises], 

in county,  Iowa,  and  that  the  same,  or  so  much  thereof  as 

may  be  necessary,  be  sold  to  satisfy  this  judgment,  interest  and 
costs ;  and  that  if  said  property  shall  not  sell  for  sufficient  to 
satisfy  the  same,  that  a  general  execution  issue  against  the  prop- 
erty of  said  defendant  for  the  remainder. 

And  thereupon  the  court  adjourns  until  to-morrow  morning, 
,  at  . .  o'clock,  .  M. 


Day,   Term,  18, 


The  court  convened  pursuant  to  adjournment,  and  was  opened 
by  proclamation  of  the  sheriff. 

ANOTHEE  EYTEY  OF  DFFALLT,  JUDGMENT  AND  DECEEE. 
IsTo.  lO. 

T....   T....       ) 

V.  >■ 

G....  G....      ) 

Now,  to-wit:  this  ....  day  of  ..,.,187.,  this  cause  comes 
on  for  hearing,  M  R,  attorney,  appearing  for  the  plaintiff,  and 
no  one  appearing  for  the  defendant. 

And  thereupon,  the  court  having  inspected  the  original  notices 
and  return  of  service  of  the  same,  finds  that  the  defendant  has 
been  duly  served  v>-ith  the  same,  and  the  said  defendant  though 
solemnly  called  comes  not,  but  makes  default;  he  is  therefore 
adjudged  to  be  in  default. 

And  the  court  having  inspected  the  pleadings,  and  heard  the 
evidence  and  proofs  of  the  plaintiff,  and  being  fully  advised  in 
the  premises  finds  that  the  allegations  of  the  petition  are  true; 
that  the  notes  and  mortgage  described  in  the  petition  are  genuine; 
that  the  notes  are  due  and  unpaid,  and  that  the  plaintiff  is  entitled 
to  a  judgment  on  said  notes  for  ....  dollars,  and  to  a  foreclosure 
of  said  mortgage  given  to  secure  the  same  as  prayed  fc  r  in  the 
petition,  against  said  defendant;  that  plaintiff  is  entitled  under 
the  stipulations  of  the  mortgage  to  ....  dollars,  as  a  remunera- 
tion for  counsel  in  this  foreclosure,  and  to  ....  dollars  for  taxes 
paid  on  the  premises,  since  the  giving  of  said  mortgage,  and  to 
....  dollars,  paid  for  necessary  al)stracts  of  title,  and  other  docu- 
mentary evidence,  to  be  taxed  as  costs. 

It  is  therefore,  adjudged  by  the  court  that  the  plaintiff  have, 
and  recover  of  the  defendant  ....  dollars,  and  interest  thereon 
to  accrue  at  10  per  cent.,  besides  costs  herein  including  the 
amounts  found  as  above,  amounting  to  ....  dollars,  which  the 
clerk  is  ordered  to  enter  with  the  other  costs  in  the  case,  amount- 
ing in  all  to  the  sum  of  $. .  . . 

3 


34  THE  clerk's  duties. 

It  is  further  adjudged  and  decreed  by  the  court  that  the  right 
of  redemption  of  the  said  defendant,  in  and  to  said  mortgaged 
premises,  to-wit:  [Here  describe  the  ])remises,]  be,  and  the  same 
is,  hereby  barred  and  foreclosed,  and  that  said  judgment  for  .... 
dollars,  with  interest  and  costs  as  aforesaid,  be  declared  a  lien  on 

said  premises  from  the   date   of  said  mortgage,  to-wit:      , 

187.,  till  the  same  is  fully  paid. 

And  it  is  further  ordered,  adjudged  and  decreed  that  said  prem- 
ises, or  so  much  thereof  as  shall  be  necessary,  be  sold  to  satisfy 
this  judgment,  Avitb  interest  and  costs;  that  a  special  execution 
issue  accordingly,  and  that  a  general  execution  issue  for  any 
balance  remaining  unsatisfied  after  exhausting  said  mortgaged 
property. 

ANOTHER  FORM  IN  CASE  OP  DEFAULT. 
No.  11. 

A   B,  Plaintiff, 

V. 

C    D,    Dpfendant. 

This  day  comes  the  said  plaintiff  by  S  T  P,  Esq.,  his  attor- 
ney, and  the  said  defendant,  although  duly  served  with  an  origi- 
nal notice  herein,  as  required  by  law,  and  being  three  times 
solemnly  called  in  open  court,  comes  not,  but  herein  makes 
default. 

It  is  therefore  considered  by  the  court  that  plaintiff  do  have 
and  recover  of  and  from  the  defendant,  C  D,  damages  by  plain- 
tiff herein  sustained.  And  it  appearing  to  the  court  that  this  suit 
is  brought  upon  a  money  demand,  and  the  damages  being  unknown 
to  the  court,  it  is  ordered  by  the  court  that  the  clerk  assess  the 
same;  thereupon  the  clerk  assessed  and  reported  the  damages  in 
the  sum  of  ....  dollars  and  ....  cents,  which  report  is  accepted 
by  the  court. 

It  is  therefore  ordered  by  the  court  that  plaintiff  have  and  recover 
of  the  said  defendant,  the  sum  of  ....  dollars  and  ....  cents, 
damages  assessed  as  aforesaid,  together  with  interest  at  the  rate 
of  .  .  per  cent,  per  annum,  and  ....  dollars  and  ....  cents, 
costs,  and  that  execution  issue  therefor. 

RECORD  ENTRY  ON  RE-TAXATION  OF  COSTS. 
No.  12. 

J....     J.... 

-y. 
S....    S..., 

Now,  to-wit:  This day   of    ,  187.,  this  cause 

comes  on  to  be  heard  before  the  court  on  defendant's  motion  to 
re-tax  costs  herein. 

And  the  court  being  fully  advised  in  the  premises,  it  is  ordered 
that  the  costs  herein  be  re-taxed,  and  that  the  defendant  be  taxed 


FORMS   OF   RECORD   ENTRIES. 


35 


with  the  cost  only  of  those  witnesses  of  the  plaintiff  who  were 
sworn  and  used  on  the  trial  of  said  cause,  and  who  claimed  their 
fees  to  the  clerk  before  the  ftnal  adjournment  of  this  court  at  the 
last  term  thereof;  and  that  the  clerk  re-tax  them  accordingly. 


EMUT  ON  AN  ORDEE  FOR  SECURITY  FOR  COSTS. 


No.  13. 

T.... 

V 

M.... 


H. 


P. 


Now,  to- wit:  this  ....  day  of  . . . . ,  187 . ,  this  cause  comes 
on  to  be  heard  on  the  motion  of  defendant  to  require  the  plaintiff 
to  give  security  for  costs  herein. 

And  the  court  being  fully  advised  in  the  premises,  it  is  ordered 
by  the  court,  that  the  plaintiff  give  a  bond  as  security  for  costs 
herein  in  the  penal  sum  of  ...  dollars,  to  be  approved  by  the 
clerk  within  ....  days. 


ENTRY  ON  AN  ORDER  FOR    AN  ATTACHMENT. 


No.  14. 


The  State  of  Iowa, 


J....    S. 
Now,  to-wit: 


) 


this  ....,  187.,  this  cause  comes  up  on  the 
motion  of  W  S  T,  the  prosecuting  attorney,  for  an  attach- 
ment against  the  defendant.  And  it  appearing  to  the  court,  that 
the  defendant  is  guilty  of  contempt  of  court,  in  refusing  as  a 
witness  to  day,  before  the  grand  jury,  to  answer  proper  questions 
put  to  him  by  the  foreman  thereof: 

It  is  therefore  ordered,  that  an  attachment  be  issued  by  the 
clerk  against  him,  and  that  he  be  brought  forthwith  before  the 
court  to  show  cause,  if  any  he  has,  why  he  should  not  be  punished 
for  said  contempt. 


EECORD  ENTRY  ON  DEFAULT,  ON  A  NOTE  BY  TWO   MAKERS,  AND   DECREE 

OF  FORECLOSURE  AUAINST  ONE  OF  THEM,  AND  SEVERAL  OTHERS. 
No.  15. 


A. 

C. 
E. 
G. 
I  . 
K. 


B 

D. 

F. 
H 
.1  . 

L. 


)■  In  Equity. 


Now,   to-wit:    ...,    187.,  this    cause    comes   up    for  a 

hearing   J     G,    Esq.,    appearing    as   attorney    for    the    plaintiff, 
and  no  one  appearing  for  the   defendants  or   cither  of  them;  and 


36  THE  clerk's  t>uties. 

the  court  inspects  the  original  notice  herein,  and  the  return  of 
service  thereon  by  the  sheriff,  and  finds  that  each  of  said  defend- 
ants has  been  duly  served  with  said  notice;  and  thereupon  each 
of  said  defendants  was  solemnly  called  but  came  not,  and  makes 
default. 

It  is  therefore  adjudged  by  the  court  that  they,  and  each  of 
them,  are  in  default. 

And  thereupon  the  court  having  inspected  the  petition,  and 
seen  and  heard  the  proofs  of  the  plaintiff  herein,  and  being  fully 
advised  in  the  premises,  finds  that  the  allegations  of  the  petition 
are  true;  that  the  note  sued  on  is  genuine,  and  due  and  unpaid; 
that  said  note  executed  by  C  D  and  G  H,  and  the  mortgage 
given  to  secure  the  same,  executed  by  the  said  defendants  C  D 
and  E  F,  to  J  S  have  been  duly  assigned  by  the  said  .J  S  the 
mortgagee,  to  the  plaintiff;  that  the  interest  in  or  lien  on  said 
premises,  described  in  said  mortgage  held  by  the  defendants  I  J, 
and  K  L,  or  either  of  them,  are  junior  and  inferior  to  the  lien  of 
plaintiffs  said  mortgage,  and  that  the  plaintiff  is  entitled  to  a  fore- 
closure of  said  mortgage  against  all  of  said  defendants,  and  to  a 
judgment  on  said  note  against  the  said  defendants  C  I)  and  G 
H,  for  the  sum  due  thereon,  and  a  decree  as  prayed  against  all  of 
said  defendants;  and  said  note  is  referred  to  the  clerk  to  com- 
pute the  amount  due  thereon,  which  is  computed  by  him  at  the 
sum  of  $ 

It  is  therefore  adjudged  by  the  court,  that  the  plaintiff  have 
and  recover  of  the  defendants  C  D  and  G  H,  the  sum  of  $.  .  . . , 
and  costs  herein  taxed  at  S .  .  . . 

It  is  further  adjudged  and  decreed  by  the  court  that  the  right 
of  defendants,  I  J  and  K  L  to,  or  their  interest  in,  the  prem- 
ises described  in  said  mortgage  is  junior  and  inferior  to  the  lein 
of  said  mortgage,  and  that  the  right  and  equity  of  redemption  of 
the  said  mortgaged  premises,  to-wit:  [Here  describe  the  lands] 
be,  and  the  same  is  hereby  barred  and  foreclosed,  and  the  said 
judgment  is  declared  a  lien  on   the  same^  from   the   date  of  said 

mortgage,  to- wit:    ,   187.,  until  the  same   is   fully  paid 

and  satisfied. 

It  is  further  ordered,  adjudged,  and  decreed  that  said  premises, 
or  so  much  thereof  as  shall  be  necessary,  be  sold  to  satisfy  said 
judgment,  with  interest  and  costs  ;  that  a  special  execution 
issue  therefor,  and  that  the  plaintiff  have  a  general  execution 
against  the  said  C  D  and  G  H,  for  any  balance  of  said  judg- 
ment that  may  remain  after  exhausting  said  mortgaged  property. 

RECORD  ENTRY  ON  LICENSE  OF  AN  ATTORNEY. 
No.  16. 

Jn  the  matter  of  the  application  of\ 
J  J  for   license   to  practice    as 
Attorney     and      Coiinsellor-at- 
Law^  in  the  courts  of  this  Stat'e. 

Now,   to-wit:   ,   187.,     J   J   applies  to   the 


FORMS  OF  RECORD  ENTRIES.  37 

court  for  a  license  to  practice  as  attorney  and  counselor- 
at-iaw  in  the  courts  of  the  State  of  Iowa.  And  it  appearing  to 
the  court  that  said  applicant  is  over  twenty  one  years  of  age,  and 
an  inhabitant  of  this  State;  that  he  is  of  good  moral  character, 
and  possesses  the  requisite  learning  and  ability  ;  the  said  J 
J  is  sworn  to  support  the  constitution  ot  the  United  States, 
and  of  the  State  of  Iowa,  and  to  faithfully  discharge  the  duty  of 
an  attorney  and  counselor  of  the  courts  of  this  State,  according 
to  the  best  of  his  ability. 

Wherefore  it  is  ordered  by  the  court  that  the  said  J  J 
be  licensed  and  admitted  to  practice  as  attorney  and  counselor- 
at-law  in  all  the  courts  of  the  State  of  Iowa. 

ENTKY  OF  A  DECREE  AGAINST  PLAINTIFF,   AND  IN  FAVOR  OF  DEFEND- 
ANTS, ON  A  COUNTER-CLAIM. 

No.  ir. 

W....  L  ...  B....  ) 

V.  >  In  Equity — Decree. 

P....  T....  ) 

Now,  to- wit:    ,  187.,  this  cause  comes  on  to  be  tried 

to  the  court  on  the  pleadings  and  proofs,  S  &  M  appearing  as 
attorneys  for  the  plaintiff,  and  M  &  M  as  attorneys  for  defend- 
ants. 

And  the  court  having  heard  the  evidence  and  the  arguments  of 
counsel,  and  being  fully  advised  in  the  premises,  finds  that  the 
equity  of  the  case  is  with  the  defendants,  and  that  the  material 
averments  of  the  defendant's  counter-claim  are  true. 

It  is  therefore  adjudged  and  decreed  that  the  plaintiffs  petition 
herein  be  dismissed. 

It  is  further  adjudged  and  decreed  that  the  deed  executed  by 

G  W  F   and  his  wife,    to    said  plaintiff,  dated    ,    187., 

and  filed  for  record  in  the  office  of  the  recorder  of county, 

Iowa,  . . . . ,  187 .,  was  made  to  the  said  plaintiff  at  the  request  of  J 
B,  who  paid  the  consideration  therefor,  and  also  at  the  request  of 
the  plaintiff,  and  was  so  procured  to  be  made  by  them,  with  intent  to 
hinder  and  delay,  and  to  cheat  and  defraud,  the  defendants  as  the 
creditors  of  the  said  J  B;  and  that  the  sales  of  said  lands 
described  in  said  deed,  to-wit:  [The  south-west  quarter  of  the 
south-west  quarter  of  section  ten,  township  86,  north  range  three 
west  of  the  oth  p.  m.],  by  the  sheriff  of  said  county,  made  on  the 

....    day  of    . .  . .,  187..,  and  on    the      day  of    ....,    18.., 

without  appraisement,  under  and  by  virtue  of  executions  issued 
on  judgments  in  favor  of  said  defendants,  and  against  the  said 
.1  B,  were  valid  sales,  and  the  deeds  executed  by  said  sheriff  on 
said  sales  to  the  defendants  as  purchasers  thereof,  and  of  the 
dat<JS  of  said  sales,  were  valid  deeds,  and  conveyed  the  title 
thereto  to  the  defendants. 

It  is  furtfior  adjudged  and  decreed  by  the  court,  that  the  sale 
of  said  lands  by  the   sheriff  of  said  county  to  the  defendants,  by 


38  THE  clerk's  duties. 

virtue  of  an  execution  issued  on  a  judgment  in  favor  of  said  G 
W  F,  and  against  said  plaintiff,  on  which  said  land  was  appraised, 
and  on  which  a  deed  was  made  to  the  defendants  as  the  purchasers 

at  the  date  of  said  sale,  to-wit: ,  187 .,  and  which  deed 

was  filed  for  record,  in  the  office  of  the  recorder  of  said  county, 
on  the  .  .  day  of  . .  . .,  187.,  and  recorded  in  book  ...  of  deeds, 
page  . .,  in  said,  recorder's  office,  was  a  valid  sale,  and  said  deed 
was  legal  and  valid,  and  conveyed  all  the  title  and  interest  of  said 
plaintiff  in  and  to  said  land  to  the  defendants. 

It  is  further  adjudged  and  decreed,  that  the  title  in  fee,  in  and 
to  said  real  estate,  be  and  the  same  is,  established  in  the  defend- 
ants, and  that  said  plaintiffs  pay  the  costs  herein  taxed  at  $ 

EECORD  ENTRY  ON  THE  PARTITION  OP  LANDS. 
No.  18. 

A B , 

V. 

C...  D andE F..., 

Now,  to-wit:  . . . .,  18.  .,  this  cause  comes  on  to  be  heard  on 
report  of  the  referees  herein  appointed,  to  make  partition  of 
the  premises  described  in  the  petition  herein,  to-wit:  [The  north 
half  of  the  south-west  quarter,  and  the  north-west  quarter  of  section 
one,  and  the  east  half  of  the  north  east  quarter  of  section  two, 
in  township  84,  north,  range  4,  west  of  the  5  P.  M.,  situate  in 
county,  Iowa,]  by  special  allotment  to  said  parties: 

And  it  appearing  that  said  referees  after  being  duly  sworn,  to 
faithfully  and  impartially  perform  said  duty,  have  made  such  par- 
tition and  reported  thereon  to  this  court  in  writing,  in  the  words 
and  figures  following,  to-wit: 

T71  the  District   Court  ....    County .,  low a^  ....  Term,  18... 

A....   B....,  Plaintiff,  ) 

V.  >  Meport  of  Referees. 

C. . .  D. . .  and  E. . .  F. . .,  Defendants.  ) 

To  the  District  Court  aforesaid: 

We,  the  undersigned,  referees  appointed  by  the  court  at  said 
term,  to  make  partition  of  the  lands  belonging  to  the  parties  in 
this  cause,  respectfully  report: 

That  after  being  duly  qualified  and  subscribing  an  oath  hereto 
attached,  we  proceeded  to  make  partition  of  the  lands  and  prem- 
ises described  in  the  petition  herein,  upon  a  personal  and  actual 
examination  of  the  said  premises,  and  that  we  have  partitioned 
said  premises  by  special  allotment,  as  follows: 

First.     AVe  have  set  off  and  allotted  to  the  plaintifi"  A  B,  as 
his  share,  the  following  described  premises,  to-wit: 

The  east  half  of  the  north-east  quarter  of  section  two,  and 
the  west  half  of  the  west  half  the  north-west  quarter  of  section 
one,  all  in  township  84,  north,  range  4,  west  of  the  5th  P.  M. 


FORMS   OF   EECOED   ENTEIES. 


39 


Second.  We  have  set  off  and  allotted  to  the  defendant,  C  D, 
as  his  share  of  said  premises,  the  following  described 
premises,  to-wit: 

The  east  half,  and  the  east  half  of  the  west  half  of  the  north- 
west quarter  of  section  one,  in  township  84,  north  of  range  4, 
west  of  the  5th  P.  M. 

Thirds  We  have  set  off  and  allotted  to  the  defendant, 
E  F,  as  his  share  of  said  premises,  the  following  described 
premises,  to-wit: 

The  north  half  of  the  south-west  quarter  of  section  one,  town- 
ship 84,  north  range  4,  west  of  the  5th  P.  M.] 

We  further  report,  that  the  subjoined  plat  is  a  true  plat  of  said 
premises  partitioned;  that  we  placed  stakes  at  the  corners  as 
shown  by  said  plat;  that  the  share  set  off  and  allotted  to  the  said 
plaintiff,  A  B,  is  marked  on  said  plat  "No.  1;"  that  the  share 
set  off  and  allotted  to  the  said  defendant,  C  D,  is  marked  on 
said  plat  "No.  2;'"  and  that  the  share  set  off  and  allotted  to  the 
defendant,    E     F,  is   marked    on    said  plat,    "No.   3." 

All  of  which  is  respectfully  submitted. 

Dated  this ....  day  of . . . .  187 . . . 

R....  O....  P.... 
H....  S....  K.... 
W.-..    H....   Q.... 


Township  84,    Range  4. 
Sec.  2.  Sec.  1. 


«  Stake, 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court, 
that  the  said  report  be  and  the  same  is  approved. 

It  is  further  adjudged  and  decreed,  that  the  said  parties  respec- 
tively have  and  hold  in  fee  simi)le  and  exclusively,  the  lands  and 
premises  so  set  off  and  allotted  to  the?n  respectively,  as  described 
and  contained  in  said  report  and  plat. 


40  THE  clerk's  duties. 

It  is  further  ordered  and  adjudged  that  D  M  C,  attorney  for 
the  plaintiff,  be  allowed  the  sum  of . , . » dollars,  as  fees  for  services 
herein  as  attorney,  to  be  taxed  as  costs  in  this  case  and  to  be  a 
lien  on  said  lands  until  the  same  is  paid. 

It  is  further  ordered  and  adjudged,  that  the  costs  herein  be 
paid  by  the  parties  hereto  in  equal  shares;  that  each  of  said  par- 
ties pay  one-third  of  said  costs,  and  that  each  one's  share  of  costs, 
be  a  lien  upon  the  lands  set  off,  attached  and  adjudged  to  him, 
and  that  the  costs  herein  be  taxed  at  ^ . . . . 


PROBATE    RECORD. 
Circuit  Court  of  the  State  of  Iowa,  iij  and  for.  . . .  County. 
....  Term,  187 . .,  ...  .Day,  ....  187 . . 

EECOED  ENTEY  ON  PROBATE  OF  A  WILL, 
No.  X9. 

In  the  matter  of  the  Estate      ) 

of  y      Probate  of  Will. 

A . . . .  B . . . . ,  deceased.        ) 

Now,  to-wit:     187. .,  it  being  the  day  set  for  a  hearing 

of  this  cause,  it  comes  on  for  a  hearing  before  the  court. 

And  it  appearing  that  due  notice  has  been  given  of  the  time  of 
final  hearing  on  this  application  for  admission  of  the  will  to  pro- 
bate, to  all  parties  interested,  by  publication  thereof  as  required 
by  law,  and  no  one  appearing  to  resist  the  probate  of  said  will; 
and  the  instrument  purporting  to  be  the  last  will  of  said  deceased 
being  produced,  and  the  testimony  of  the  subscribing  witnesses 
thereto  being  heard,  the  court  finds:  that  the  said  instrument  was 
duly  signed  and  executed  by  the  deceased,  A  B,  at  the  time  it 
purports  to  have  been,  as  and  for  his  last  will;  that  at  that  time 
said  deceased  was  of  sound  mind;  that  he  then  declared  the  said 
instrument  to  be  his  last  will,  in  the  presence  of  C  D,  and  E  F, 
the  subscribing  witnesses  thereto,  who  then,  and  in  the  presence 
of  said  deceased,  and  in  the  presence  of  each  other,  and  at  the 
special  request  of  the  said  A  B,  deceased,  signed  their  names 
as  witnesses  thereto. 

It  is  therefore  ordered  and  adjudged  by  the  court,  that  said  will 
be  admitted  to  probate  as  and  for  the  last  will  of  the  said  A  B, 
deceased,  and  that  said  will  be  recorded  in  the  proper  record  of 
wills  in ... .  county,  Iowa. 

It  is  further  ordered  that  G  H,  the  person  named  in  said  will 
as  the  executor  thereof,  be  appointed  and  confirmed  as  such  exec- 
utor, upon  his  filing  a  bond  as  such  executor,  with  the  clerk  of 
this  court,  and  to  be  approved  by  him  in  the  penal  sum  of  $   ... 


FORMS   OF   EECOED   ENTRIFS.  41 

FOKM  OF  JUDGMENT  BY  CONFESSION  IN  VACATION. 
No.  20. 

A B ,  Plaintiff, 

V. 

C . . . .  D . . . . ,  Defendant. 

Be  it  remembered:  That  on  this  day,  to-wit:  ,  187., 

comes  A  B,  the  plaintiff  herein  and  files  in  the  office  of  the  clerk 
of  this  court  a  writTen  statement  and  confession  of  judgment, 
made  and  signed  by  the  defendant,  C  D,  and  duly  Verified  by  his 
oath  thereto  attached,  whereby  said  C  D  confesses  himself  justly 

indebted  to  the   said  plaintiff   in  the  sum  of   dollars  and 

cents,  and  authorizes  the  clerk  of  this  court  to  enter  judg- 
ment thereon  for  said  sum  with  costs. 

Now,  therefore,  it   is   considered  and  adjudged,  that  the  plain- 
tiff have  and  recover  of  said  defendant  said  sum  of  ...    ....  dollars 

and cents,  with  costs  herein  taxed  at  $ 

The  recorded  judgments  to  be  entered  on  the  judg- 
ment docket. — The  judgments  entered  in  the  "Record  Book," 
should  also  be  entered  by  the  clerk  in  the  "  Judgment  Docket," 
with  the  names  of  each  of  the  parties,  plaintiffs  and  defendants, 
and  the  names  of  each  party  should  also  be  properly  entered  on  the 
index  of  said  "  Judgment  Docket." 

Unless  the  index  refers  to  each  of  the  parties  defendant,  it 
would  not  operate  as  notice  to  third  parties,  who  were  included 
in  the  judgment  as  defendants. 

The  entry  of  the  judgment  in  the  "  Index  Book,"  as  A  B,  et  al., 
defendants,  may  be  good  notice  of  plaintiff's  rights,  as  to  the 
defendant  named,  but  not  as  to  the  others.  The  name  of  each 
should  be  entered  therein. 


43  OATHS   IN    COURT. 


CHAPTER  IV. 


OATHS  IN  COURT. 

I.     BY  WHOM  ADMINISTERED. 

Although  there  is  no  express  provision  of  the  statute  making  it 
the  duty  of  the  clerk  to  administer  oaths  required  in  open  court, 
still  he  usually  performs  that  act,  and  he  may  administer  oaths 
at  any  time;  and  those  parties  who  object  to  being  sworn,  may 
affirm.    Code,  Sec.  277. 

II.     FORMS   OF  OATHS. 

OATH  ON  APPLICATION  TO  BE  EXCUSED,  BY  JUROR. 
No.  21. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you,  touching  your 
application  to  be  excused  from  attendance  as  a  grand  juror  at 
this  term  of  court.  So  help  you  God.  [In  case  of  affirmation  in 
all  cases  omit  the  last  sentence.] 

OATH  TO  JUROR  FOR  REMISSION  OF  FINE. 
No.  S3. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you,  touching  your 
application  for  the  remission  of  your  fine  on  a  default  in  attend- 
ing as  a  juror  at  this  term  of  this  court.     So  help  you  God. 

OATH  AS  TO  QUALIFICATIONS  OF  GRAND  JURORS. 
No.  S3. 

You,  and  each  of  you,  do  solemnly  swear,  (or  affirm),  that  you 
will  true  answers  make  to  such  questions  as  shall  be   put  to  you 

touching  your  qualifications  as  a  grand  juror  for county.  So 

help  you  God. 


FORMS   OF   OATHS.  4$ 

OATH  TO  THE  FOREMAN  OP  THE  GEAND  JURY. 
N'o.  24. 

You,  as  foreman  of  the  grand  jury,  shall  diligently  inquire  and 
true  presentment  make  of  all  public  offenses  against  the  people 
of  this  state  committed  or  triable  within  this  county  of  which  you 
have  or  can  obtain  legal  evidence;  yovi  shall  present  no  person 
through  malice,  hatred,  or  ill  will,  nor  leave  any  unpresented 
through  fear,  favor,  or  affection,  or  for  any  reward  or  the  promise 
or  hope  thereof;  but  in  all  of  your  presentments  you  shall  pre- 
sent the  truth,  the  whole  truth,  and  nothing  but  the  truth,  accord- 
ing to  the  best  of  your  skill  and  understanding.  So  help  you 
God. 

OATH  TO  THE  OTHER  GRAND  JURORS. 
No.  25. 

The  same  oath  which  your  foreman  has  now  taken  before  you 
on  his  part,  you,  and  each  of  you,  shall  well  and  truly  observe  on 
your  part.     So  help  you  God. 


OATH  ON  CHALLENGE  TO  THE  PANEL,  IN  CRIMINAL  CASES. 
No.  ,26. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  true  answers 
make  to  such  questions  as  shall  be  put  to  you  touching  the  chal- 
lenge to  the  panel  of  trial  jurors  selected,  drawn^  and  summoned 
for  this  term  of  the  court.     So  help  you  God. 


OATH  TO  TRIAL  JURORS,  TOUCHING  THEIR  QUALIFICATION. 
No.  27. 

You,  and  each  of  you,  do  solemnly  swear,  (or  affirm),  that  you 
will  true  answers  make  to  such  questions  as  shall  be  put  to  you 
touching  your  qualifications  to  sit  as  a  juror  in  this  cause.  So 
help  you  God. 

OATH  TO  TRIAL  JURORS. 
No.  28. 

You,  and  each  of  you,  do  solemnly  swear,  (or  affirm),  that  you 
will  well  and  truly  try  the  issues  joined  in  this  cause  between 
A  B,  plaintiff,  and  C  D,  defendant,  and  a  true  verdict  give 
according  to  the  evidence,  and  the  instructions  given  you  by  the 
court.     So  help  you  God. 


OATH  TO  WITNESSES  ON  THE  TRIAL. 
No.  29. 

You  do  solemnly  swear,  (or  affirm),  that  the  evidence  you  shall 
give  in  the  cause  now  pending  before  this  court  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.     So  help  you  God. 


44  OATHS   IN   COUBT. 

ANOTHEE  FORM-OATH  TO  SEVERAL  WITNESSES. 
VTo.  30. 

You,  and  each  of  you,  do  solemnly  swear,  (or  affirm),  that  the 
testimony  you  shall  give  in  this  cause  wherein  A  B  is  plaintiff,  and 
C  D  is  defendant,  shall  be  the  truth,  the  whole  truth,  and 
nothing  but  the  truth.     So  help  you  God. 

OATH  TO  INTERPRETER. 
No.  31. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  well  and  truly 

interpret  between  the  court,  the  jury,  the  counsel  and  the  witness 

A  B,  in  the  cause   now  pending  wherein  C    D   is  plaintiff,  and 

E  F  is  defendant.     So  help  you  God. 

OATH    TO    BAILIFF    IN    CHARCtE  OF   A  TRIAL  JURY  IN  CRIMINAL  CASE 

DURING  ADJOURNMENT  OF  COURT. 
KTo.  33. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  keep  all  the 
members  of  this  jury  together  in  some  safe  and  convenient  place 
during  the  adjournment  of  this  court,  and  suffer  no  person  to 
speak  to  or  cummunicate  with  them  on  any  subject  connected 
with  this  trial,  nor  do  so  yourself,  and  return  them  into  the  court 
at  the  opening  of  the  same  after  the  adjournment.  So  help  you 
God. 

OATH  TO  BAILIFF  IN  CHARGE  OF  TRIAL  JURY. 
No.  33. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  keep  this  jury 
together  in  some  private  and  convenient  place,  without  meat  or 
drink,  water  excepted;  that  you  will  not  suffer  any  person  to 
speak  to  or  communicate  with  them,  nor  speak  to  or  communicate 
with  them  yourself,  unless  it  be  to  ask  them  whether  they  have 
agreed  upon  their  verdict;  that  you  will  not  communicate  to  any 
one  the  state  of  their  deliberations,  or  the  verdict  agreed  upon, 
until  after  the  same  shall  have  been  declared  in  open  court,  and 
received  by  the  court;  and  that  you  will  return  them  into  court 
•when  they  shall  have  so  agreed  upon  their  verdict,  unless  by  per- 
mission or  order  of  the  court,  or  they  be  sooner  discharged.  So 
help  you  God.     Code,  Sec.  4442. 

OATH  TO  BAILIFF  ON  RETIRING  WITH  A  GRAND  JURY. 
No.   34. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  faithfully 
attend  upon  this  grand  jury,  obey  all  their  lawful  behests,  and 
keep  secret  all  their  doings  that  may  come  to  your  knowledge. 
So  help  you  God. 

OATH  TO  ATTORNEYS  AND  COUNSELORS. 
No.  35. 

You  do  solemnly  swear,  (or  affirm),  that  you  will  support  the 
constitution  of  the  United  States  and  of  the  State  of  Iowa,  and 
faithfully  discharge  the  duties  of  an  attorney  and  counsellor  of  the 
courts  of  said  State.     So  help  you  God. 


BOOKS  AND   KECOEDS.  45 


CHAPTEE  T. 


OTHER  BOOKS,  RECORDS   AND  DUTIES. 

I.     BOOKS  AND   RECORDS. 

Fee  book. — He  is  required  to  keep  a  Fee  Book,  Sale  Book, 
Complete  Record  Book,  Incumbrance  Book,  Appearance  Docket, 
and  Index  Book.  These  books  are  usually  prepared  with  printed 
headings  and  forms,  in  compliance  with  the  law,  and  these  with 
the  directions  of  the  statute,  will  be  a  sufficient  guide  to  the 
clerk  in  making  the  proper  records  therein. 

Calendar  of  causes. — The  clerk  is  further  required  to  keep 
a  calendar  of  causes  in  court,  distinguishing  first,  criminal,  and 
next  the  civil  causes,  and  arranging  each  in  the  order  of  their 
commencement;  and  under  the  direction  of  the  judge  to  appor- 
tion the  same  to  as  many  days  as  is  believed  necessary,  and  at 
the  request  of  any  party  or  his  attorney,  to  issue  subpoenas  accord- 
ingly. And  he  is  required  to  furnish  the  court  and  the  bar 
with  a  sufficient  number  of  printed  copies  of  the  calendar.  Code, 
Sec.  2747. 

II.    OTHER  DUTIES. 

Drawing  jurors. — When  a  jury  is  required,  the  clerk 
should  select  twelve  jurors  by  lot  from  the  regular  panel,  and  if 
they  are  excluded  on  challenges  made  for  any  cause,  their  places 
should  be  filled  by  jurors  drawn  in  the  same  manner  from  the  reg- 
ular panel,  until  the  panel  is  exhausted,  when  the  requisite  num- 
ber can  be  supplied  by  talesmen,  selected  by  the  sheriff  from  the 
body  of  the  county.     Code,  Sec.  27G1,  27G5. 

Entering  judgment  and  satisfaction.— He  is  required  to 


46  OTHER  BOOKS,  RECORDS  AND  DUTIES. 

enter  all  orders  and  judgments  on  the  record  of  the  court,  and 
specify  clearly  the  relief  granted,  or  order  made,  in  the  action,  for 
which  we  have  already  furnished  the  requisite  forms  in  many 
cases;  and  when  the  judgment  is  set  aside,  or  satisfied  by  execu- 
tion, or  otherwise,  the  clerk  should  at  once  enter  a  memorandum 
thereof,  on  the  column  left  for  that  purpose,  in  the  judgment 
docket. 

Complete  record:  when  to  make. — In  cases  where  the 

title  to  land  is  involved,  and  expressly  settled  or  determined,  the 
clerk  should  make  a  complete  record  of  the  whole  cause,  and 
enter  it  in  the  proper  book;  but  in  no  case  need  a  complete  record 
be  made,  except  at  the  request  of  a  party  who  will  pay  the 
expense  of  such  record.     Code,  Sees.  2864,  2865,  2866. 

To  compute  amounts  due  in  certain  cases. — When  the 

action  is  for  a  money  demand,  and  the  amount  of  the  proper 
judgment  is  a  mere  matter  of  computation,  the  clerk  should  ascer- 
tain the  amount,  but  no  fee  shall  be  charged  therefor.  Code, 
Sec.  2872. 

To  tax  costs. — The  clerk  is  required  to  tax  costs  in  favor  of 
the  party  recovering  costs,  the  allowance  of  his  witnesses,  the  fees 
of  officers,  the  compensation  of  referees,  the  necessary  expenses 
of  taking  depositions  by  commission,  or  otherwise,  and  any  fur- 
ther sum  for  any  other  matter  which  the  court  may  have  awarded 
as  costs  in  the  progress  of  the  cause,  or  may  deem  just  to  be 
taxed;  and  any  person  aggrieved  by  the  taxation  of  a  bill  of  costs 
may  upon  application  have  the  same  re-taxed  by  the  court 
or  by  a  referee,  appointed  by  the  court,  in  which  the 
application  or  proceeding  was  had;  and  in  such  re-taxation 
all  errors  shall  be  corrected;  and  if  the  party  aggrieved 
shall  have  paid  any  unlawful  charge,  by  reason  of  the  first  taxation, 
the  clerk  shall  pay  the  costs  of  re-taxation,  and  also  to  the  party 
aggrieved  the  amount  which  he  may  have  paid  by  reason  of  the 
allowing  of  such  unlawful  charges,     (/ode,  Sees.  2942,  2944. 


OF    EXECUTION.  .  47 


CHAPTER  TL 


DUTY  RELATING  TO  PROCESS. 

I.    OF  EXECUTION. 

To  make  a  record  of  what.— The  clerk  is  required  to  issue 
an  execution  on  the  demand  of  any  party  entitled  thereto;  and 
upon  its  issuance,  he  is  required  to  enter  on  the  judgment  docket 
the  date  of  its  issuance,  to  what  county  and  officer  issued;  and 
shall  also  enter  on  said  docket  the  return  of  the  officer,  with  the 
date  of  the  return,  the  dates  and  amount  of  all  moneys  received 
into  or  paid  out  of  the  office  thereon;  and  these  entries  shall  be 
made  at  the  time  of  the  thing  done.     Code,  Sec.  3029. 

Liability  for  failure  of  duty.— Any  clerk  willfully  neglect- 
ing to  perform  any  one  of  these  duties,  is  liable  to  a  penalty  of 
five  hundred  dollars,  and  to  damages  to  the  party  aggrieved,  and 
is  guilty  of  a  misdemeanor  in  office;  and  on  conviction  thereof 
shall  be  removed  from  office.     Code,  Sec.  3030. 

Execution  to  another  county . — If  execution  is  issued  to 

any  county,  other  than  that  in  which  judgment  is  rendered,  a 
transcript  of  such  judgment  must  be  filed  in  the  office  of  the 
clerk  of  the  District  Court  of  such  county,  who  shall  make  an  entry 
thereof  in  the  judgment  docket  of  such  court,  and  the  officer 
having  such  execution  shall  return  a  copy  thereof,  with  his  return 
and  doings  indorsed  thereon,  to  such  clerk,  who  shall  make  entries 
thereof  in  the  same  manner,  and  to  the  same  extent,  as  if  such 
judgment  had  been  entered  in,  and  execution  issued  from,  such 
court.  Code,  Sec.  3033. 
What  the  execution  must  contain.— The  execution  must 

intelligibly  refer  to  the  judgment,  stating  the  time  and  place  at 


48  DUTY  RELATING  TO  PROCESS. 

which  it  was  rendered,  the  names  of  the  parties  to  the  action,  as 
well  as  the  judgment,  its  amount,  and  the  amount  still  to  be  col- 
lected thereon,  if  for  money;  and  if  not  for  money,  it  must  state 
what  specific  act  is  required  to  be  performed. 

If  for  money  and  against  property. — If  it  be  against  the 

property  of  the  judgment  debtor,  it  shall  require  the  sheriff  to 
satisfy  the  judgment,  interest  and  costs,  out  of  the  property  of 
the  judgment  debtor  subject  to  execution.     Code,  Sec.  3033. 

If  it  be  against  real  or  personal  property  in  the  hands  of  per- 
sonal representatives,  heirs,  devisees,  legatees,  tenants  of  real 
property,  or  trustees,  it  shall  require  the  sheriff  to  satisfy  the 
judgment  out  of  said  property.     Code,  Sec.  3034. 

If  for  the  delivery  of  real  or  personal  property. — If 

for  the  delivery  of  real  or  personal  property-,  it  shall  require  the 
sheriff  to  deliver  the  possession  of  the  same,  particularly  describ- 
ing it,  to  the  party  entitled  thereto;  and  it  may  at  the  same  time 
require  the  sheriff  to  satisfy  any  costs,  damages,  rents,  and  profits, 
with  interest,  recovered  by  the  same  judgment,  out  of  the  prop- 
erty of  the  party  against  whom  it  was  rendered,  subject  to  exe- 
cution, and  the  value  of  any  property  for  Avhich  judgment  was 
recovered,  to  be  specified  therein;  and  if  a  delivery  thereof  can- 
not be  had,  it  shall  in  that  case,  and  in  that  respect,  be  deemed 
an  execution  against  property.     Code,  Sec.  3035. 

If  for  the  performance  of  any  other  act. — When  it 

requires  the  performance  of  any  other  act,  a  certified  copy  of  the 
judgment  may  be  served  on  the  person  against  whom  it  is  given, 
or  upon  the  person  or  officer  who  is  required  thereby,  or  by  law, 
to  obey  the  same  and  his  disobedience  enforced.  Code,  Sec. 
303G. 

If  the  judgment  is  against  a  principal. — If  the  judg- 
ment is  against  a  principal  and  his  sureties,  and  the  judgment 
shows  that  fact,  the  clerk  issuing  execution  on  the  judgment, 
shall  state  the  order  of  liability. 

AVhen  execution  may  issue  :  one  at  a  time. — Executions 

may  issue  into  any  county,  at  any  time  within  ten  years,  when 
they  are  barred  by  the  statute  of  limitations;  but  only  one  exe- 


OF    EXECUTIOIf.  49 

cution  can  Issue  and  be  in  existence  at  the  same  time.  If  one 
has  been  issued,  no  other  can  properly  issue,  until  some  return 
of  the  first  has  been  made,  and  then  only  to  satisfy  any  balance 
of  the  judgment  that  may  remain  unsatisfied.  Code,  Sees. 
3025,  3086. 

Stay  of  execution:  how  taken,  and  effect.— Surety  for 

the  stay  of  execution  may  be  taken  and  approved  by  the  clerk, 
and  the  bond  giv^en  therefor  should  be  recorded  in  a  book  to  be 
kept  by  the  clerk  for  that  purpose,  and  it  has  the  force  and  effect 
of  a  judgment  confessed  from  the  date  thereof,  against  the  prop- 
erty of  the  sureties;  and  the  clerk  should  enter  and  index  the 
same  in  the  proper  judgment  docket,  as  in  case  of  other  judg- 
ments.    Code,  Sec.  3061. 

When  stayed  after  execution  has  issued  .—When  the 

stay  is  entered  after  execution  is  issued,  the  clerk  should  imme- 
diately notify  the  sheriff  of  the  stay,  and  he  should  forthwith 
return  the  execution  with  his  doings  thereon.  Code,  Sec. 
3065. 

When  a  surety  may  have  execution  issued . — When 

any  surety  for  the  stay  of  execution  files  with  the  clerk 
an  affidavit  stating  that  he  verily  believes  he  will  be  liable  for 
the  judgment,  interest  and  costs  thereon,  unless  execution  issues 
immediately,  the  clerk  should  issue  execution  thereon,  forth- 
with, unless  other  sufficient  surety  be  entered  before  the  clerk 
as  in  other  cases. 

STAY  BOND. 
No.  36. 

,  Plaintiff,      )  In  the Co7^rt  of  the  State  of  lowa^ 

V.  >  in  and  for . . .  .cou>it>/. 

,  Defendant.  )  Amount  of  judgment,  %. . . .  Costs  8  . . . 

\  ._.  .do  hereby  acknowledge suret for    the  defendant. . 

herein,  for  the  payment  of  the  judgment  and  costs,   and   interest 

thereon,  rendered  by  the Court  of  the  State   of  Iowa,  in  and 

for county,  in  the  above  entitled  action,  on  the. .  .  .day  of 

A.  D.  187.  .,  against  said  defendant. .,  for  the  purpose  of  a  stay 
of  execution  thereon  for.  . .  .months;  and  to  that  end.  .  .  .hereby 
undertake  and  promise  to  pay  the  said  judgment,  interest  and 
costs,  that  may  accrue  at  or  before  the  expiration  of  thn  said  term 
of  the  stay  of  execution,  and  upon  the  expiration  of  said  term. . . . 
4 


50  rUTT  DELATING  TO  PROCESS. 

hereby  authorize  Jind  empower  the  clerk    of   said   court  to  issue 

execution  against as  provided  by  law. 

Dated  at.... the.... day  of,... A.  D.  187.. 


JUSTIFICATION  OF  SUKETIES. 
No.  37. 

State  of  Iowa,      ) 

County,     ) 

. .  .being  duly  sworn  depose  and  say,. . .  .that. . .  .resident... 
and  householder,  (or  freeholder),  within.  .  .county,  in  the  State  of 
Iowa;  that. .  . .  suret.  . .  .in  the  foregoing  bond;  that. . .  .worth  in 
real  estate  therein  the  sum  of . . . .  dollars,  beyond  the  amount  of 
. . .  .debts  and  that. . .  .property  liable  to  execution  in  the  State 
of  Iowa,  equal  to ... .  dollars. 


JURAT. 


Sworn  to  before  me  and  subscribed  in  my  presence  by  the  said 
..and this day  of A.  D.  187.. 


EXECUTION  FOR  MONEY. 
I^o.  38. 

State  or  Iowa,  ■]  ^^ 

County,  f 

To  the  sheriff  of. . . .  county.,  greeting: 

Whereas,  judgment  against  A  B  for  the  sum  of. ..  .dollars, 
damages,  with  interest  thereon  at  the  rate  of.  ...per  cent,  per 
annum,  and. .  .  .dollars,  costs,  was  rendered  in  the. . .  .Court  for 
said  county  of. . .  .at  the  court  house  in.  . . .,  on  the.  .  .  .day  of 
....  A.  D.  187 . . ,  in  an  action  wherein  C  D  was  plaintiff,  and  A  B 
was  defendant,  which  judgment,  the  interest  thereon  and  costs 
still  remain  unpaid. 

These,  therefore,  are  in  the  name  and  by  the  authority  of  the 
State  of  Iowa,  to  command  you  that  of  the  goods,  chattels,  lands 

and  tenements  of  the  said if  sufficient  be    found  in    your 

county  which  are  subject  to  execution,  you  cause  to  be  made  the 
said  sum,  with  interest  thereon  and  costs,  and  accruing  costs,  by 
levy  and  sale  thereof  according  to  law,  and  have  you  said  sums  of 
money  before  us  within  seventy  days  from  the  date  hereof,  to 
render  unto  those  who  may  be  legally  entitled  thereto,  and  have 
you  then  and  there  this  writ,  with  a  return  of  your  doings  in  the 
premises  hereon  indorsed  or  annexed. 

Witness, clerk  of  said  court,  with  the  seal  thereof  here- 
unto affixed  at ,  in  said    county,   this day   of , 

A.  D.  187..  Clerk. 


OF   CEKTIOKAEI.  51 

SPECIAL  EXECUTION. 
N"o.  39. 

State  of  Iowa, 
County, 

To  the  sheriff  of  said  county^  greeting: 

Whereas,  on  a  day  of  the  term  of  the ....  Court  of . . . .  county, 
State  aforesaid,  holden  at ... .  therein,  on  the ....  day  of. ...  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  seventy  . . ., 
a  judgment  was  rendered  in  favor  of  A  B,  plaintiff,  against  C  D, 
defendant,  for ....  dollars,  damages,  and ....  dollars,  costs; 
and  the  court  adjudged  and  decreed,  that  the  following  described 
tract  or  parcel  of  land,  situate  in  said  county,  to- wit:  [Here 
describe  the  land,]  or  so  much  thereof  as  shall  be  sufficient  to  sat- 
isfy the  amount  of  said  judgment,  interest  and  costs,  be  sold  to 
satisfy  the  same;  and  whereas,  the  said  defendant,  .ha.  .failed  to 
pay  the  said  judgment,  interest  and  costs,  or  either  or  any  part 
thereof: 

Therefore,  we  command  you,  that  of  the  lands  hereinbefore 
described  in  your  county,  you  cause  to  be  made  the  sum  of . . . . 
dollars  and.  — cents,  principal  and  interest.  . . . ;  also. . .  .dollars 
and. .  .cents,  costs  of  suit,  which,  in  our  said.  .  .court  of. .  .coun- 
ty, at  the  time  aforesaid,  the  said  plaintiff,  .recovered  against  the 

said   defendant together  with  interest  thereon  at  the  rate 

of. .  . .  per  cent,  per  annum,  from  the  ...  day  of.  ...  A.  D,  187 . . , 
the  time  of  the  rendition  of  the  judgment  and  decree  aforesaid, 
as  being  the  amounts  now  due  said  plaintiff. .,  as  appears  to  us  of 
record,  and  have  you  the  money  before  us  within  seventy  days 
to  render  to  those  who  may  be  legally  entitled  thereto,  with  a 
return  of  your  doings  hereon  indorsed  or  annexed;  and  hereof 
fail  not  at  your  peril. 

Witness, ....  clerk  of  the  said  court,  and  the  seal  thereof  hereto 
affixed  at  my  office  in .... ,  this ....  day  of. ...  A.  D.  187 . . 

Clerk. 

Deputy. 

II.    OF   CERTIORARI. 

May  grant  writs  of. — The  clerk  may  grant  writs  of  certi- 
orari; and  when  directed  so  to  do  by  the  judge  or  court,  may 
approve  the  bond  required  in  certain  cases. 

WEIT  OF  CERTIORARI. 
No.  40. 

State  or  Iowa,      ) 
County.  ) 

Tlve  State  of  Iowa   to   A   B.,    CD  and  E  F^  members  of  the 
Board  of  Siiper);isors  of  said  county: 

WuEJiEAS,  On  the  petition  of  G  H,  it  has  been  made  to  appear  to 


52  DUTY  RELATIXG  TO  PROCESS. 

the  (naming  the  court,)  that  you  have  exceeded  your  jurisdiction 
as  the  board  of  supervisors  of  said  county,  by  ordering  the  erec- 
tion of  a  court-house  in  said  county,  and  letting  contracts  there- 
for, at  a  cost  of  over  five  thousand  dollars,  (or  where  the  probable 
cost  will  exceed  five  thousand  dollars),  without  a  submission  of  a 
proposition  therefor  to  the  legal  voters  of  said  county  at  any 
election,  and  are  proceeding  illegally  in  the  matter  of  erecting  a 
court-house  for  said  county,  (or  state  any  other  illegal  act.) 

You  are  therefore,  hereby  commanded  to  certify  and  return 
fully  to  our  said  court,  on  the  ....  day  of  .  . .,  18.  .,  a  transcript 
of  the  records  and  proceedings,  as  well  as  the  facts  in  the  case  in 
reference  to  said  order,  and  any  evidence  you  may  have  of  the 
cost  of  said  court-house,  (or  of  the  probable  cost  of  the  same,  and 
in  reference  to  any  vote  that  may  have  been  taken  on  the  propo- 
sition to  build  said  CQurt-house,  if  any),  as  fully  as  the  same  are 
now  before  you,  and  have  you  then  and  there  this  writ. 

Witness clerk  of  said   court,  with  the   seal   thereof, 

hereto  affixed  this  ....  day  of  ....  18 . . 

,  Clerk. 

III.     OF  ATTACHMENTS. 

Provisions  of  tiie  Code . — The  following  are  the  provisions 
of  the  Code,  in  reference  to  the  clerk's  duty  in  attachment  cases: 

Plaintiff  must  give  bond. — Section  2959.  In  all  cases  before  it  (the  attach- 
ment) can  be  issued,  the  plaintifT  must  file  with  the  clerk  a  bond  for  the  use  of  the 
defendant  with  sureties  to  be  approved  by  such  clerk,  in  a  penalty  at  least  double 
the  value  of  the  property  sought  to  be  attached,  and  in  no  case  less  than  two  hun- 
dred and  fifty  dollars  in  a  court  of  record,  nor  less  than  fifty  dollars  if  in  a  justice's 
court,  conditioned  that  the  plaintiff  will  pay  all  damages  which  the  defendant  may 
sustain  by  reason  of  the  wrongful  suing  out  of  the  attachment. 

Additional  security. — Sec.  2960.  The  defendant  may,  at  any  time  before  judg- 
ment, move  the  court  or  judge  for  additional  security  on  the  part  of  the  plaintiff,  and 
if,  on  such  motion,  the  court  or  judge  is  satisfied  that  the  surety  in  the  plaintiff's  bond 
has  removed  from  this  state,  or  is  not  sufficient,  the  attachment  may  be  vacated  and 
restitution  directed  of  any  property  taken  under  it,  unless,  in  a  reasonable  time  to  be 
fixed  by  the  court  or  judge,  security  is  given  by  the  plaintiff. 

Action  on  or  by  way  of  counter-claim. — Sec.  2661.  In  an  action  on  such  bond, 
the  plaintiff  therein  may  recover  if  he  shows  that  the  attachment  was  wrongfully  sued 
out,  and  that  there  was  no  reasonable  cause  to  believe  the  ground  upon  which  the 
same  was  issued  to  be  true,  the  actual  damages  sustained  and  reasonable  attorney's 
fees  to  be  filed  by  the  court ;  and  if  it  be  shown  such  attachment  was  sued  out  mali- 
ciously, he  may  recover  exemplary  damages,  nor  need  he  wait  until  the  principal  suit 
is  determined  before  suing  on  the  bond. 

To  whom  directed. — Sec.  29G2.  The  clerk  shall  issue  an  attachment,  directing 
the  shenff  of  the  county  therein  named  to  attach  the  property  of  the  defendant  to 
the  requisite  amount  therein  stated. 

More  than  one  attachment. — Sec.  2963.  Attachments  may  be  issued  from 
courts  of  record  to  different  counties,  and  several  may,  at  the  option  of  the  plaintiff, 


OF   ATTACnMENT.  53 

be  issued  at  the  same  time,  or  in  succession  and  subsequently,  until  sufficient  proper- 
ty has  been  attached ;  but  only  those  executed  shall  be  taxed  in  the  costs,  unless  other- 
wise ordered  by  the  court ;  and  if  more  property  is  attached  in  the  aggregate  than  the 
plaintiff  is  entitled  to  have  held,  the  surplus  must  be  abandoned  and  the  plaintiff  pay 
all  costs  incurred  in  relation  to  such  surplus. 


ATTACHMENT  BOND. 
No.  41. 

Know  all  men  by  these  presents.,  That  we,  A  B,  principal, 
and  C  D  and  E  F,  sureties,  are  held  and  firmly  bound  unto  G  H  in 

the  penal  sum  of dollars,  for  the  true  payment  of   which 

we  bind  ourselves  firmly  by  these  presents. 

The  condition  of  the  above  obligation  is  such  that,  whereas  A  B 
has  this  day  sued  out  of  the  office  of  the  glerk  of  the  ...  Court  of 
....  county,  Iowa,  an  attachment  against  the  property  of  said  G  H. 

Now  if  the  said  A  B  shall  pay  the  said  defendant  all  the  dam- 
ages that  ....  may  sustain  by  the  wrongful  suing  out  of  said  writ 
of  attachment,  then  this  bond  to  be  void,  otherwise  in  full  force. 

Dated  at this day  of A.  D.  18 . . . 


A.. 

..  B 

C... 

.  D 

E.., 

,.   F 

[For  Form  of  Affidavit  of  Sureties.,  see  N'o.  37.] 


FOEX  OF  WEIT  OF  ATTACHMENT. 

State  of  Iowa,  To  the  sheriff  of  ... .  county,  greeting: 

Whereas,  A  B  has  filed  his  petition  in  the  clerk's  office  of  the 
....  Court  of  the  State  of  Iowa,  in  and  for  ....  county,  duly 
sworn  to  according  to  law,  claiming  of  C  D  the  sura  of  ....  dol- 
lars as  money  due  on  (note,  account,  or  other  matter),  and  alleges 
[here  state  the  grounds  of  the  attachment],  and  asking  a  writ  of 
attachment  against  the  lands  and  tenements,  goods,  chattels,  rights 
and  credits  of  the  said  C  D. 

Now  therefore  you  are  hereby  commanded  to  attach  the  lands 
tenements,  goods  and  chattels,  rights  and  credits  of  the  said  C 
D,  (except  such  as  is  exempt  from  execution)  wherever  the  same 
may  be  found  in  your  county,  or  so  much  thereof,  as  may  be 
necessary  to  satisfy  said  amount  of  ....  dollars,  with  interest  and 
costs,  and  safely  preserve  the  same,  to  be  dealt  with  as  retjuired 
by  law.  And  of  this  writ  you  will  make  due  and  legal  service, 
and  return  to  our  said  court  on  or  before  the  first  day  of  the  next 
term  thereof. 

In  witness  whereof,  I ,  clerk  of  said  court  have  here- 
unto set  my  hand  and  affixed  the  seal  thereof  the  ....  day  of 
....,18... 

,  Cleric, 


54  DUTY  KELATIXG  TO  PROCESS. 

IV.     OF  REPLEVIN. 

Bond:  Snreties. — In  actions  for  the  recovery  of  specific 
personal  property,  the  clerk  is  required  to  take  a  bond,  with 
sureties,  to  be  approved  by  him,  where  the  plaintiff  desires  the 
immediate  possession  thereof,  for  the  use  of  any  person  injured 
by  the  proceedings.  "Whereupon  the  clerk  should  issue  an  order 
under  his  hand,  and  the  seal  of  the  court,  directed  to  the  sheriff 
and  requiring  him  to  take  the  property  therein  described,  and 
deliver  the  same  to  the  sheriff. 

And  where  the  petition  shows  that  the  property  has  been 
wrongfully  removed  into  another  county,  from  the  one  in  which 
the  action  is  commenced,  the  order  may  issue  from  the  county 
whence  the  property  is  so  wrongfully  taken,  and  may  be  served 
in  any  county  where  the  property  can  be  found,  in  the  same  man- 
ner and  with  the  same  effect;  and  if  the  property  is  moved  after 
suit  is  brought,  counterparts  of  the  order  may  be  issued  to  such 
other  county. 

EEPLEVIxN   BOND. 
No.   43. 

JTiiow  all  men  by  these  Presents  :  That  we,  A  B  principal, 
and  C  D  and  E  F,  sureties,  are  held  and  firmly  bound  unto  G  H, 
in  the  sum  of  ....  dollars,  lawful  money  of  the  United  States, 
well  and  truly  to  be  paid  to  the  said  G  H,  his  heirs,  executors 
and  assigns. 

The  condition  of  this  obligation  is  such,  that  whereas,  the  said 
A  B,  did  on  the  . . .  day  of  . . . .,  18.  .,  file  his  petition  in  the 
clerk's  office,  of  the  ....  Court  of  the  State  of  Iowa,  in  and  for 
....  county,  claiming  of  the  said  G  H,  the  present  possession  of 
[here  particularly  describe  the  property',]  and  asking  the  issuance 
of  a  writ  of  replevin  therefor.  Now  if  the  said  A  B,  shall  appear 
at  the  next  term  of  said  court,  and  prosecute  his  said  suit  to  judg- 
ment, and  return  the  property  if  a  return  be  awarded,  and  also 
pay  all  costs  and  damages  that  may  be  adjudged  against  him  in 
said  action,  then  this  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  virtue. 

Dated, 18... 

A . . . .   B . . .  • ,  Principal. 

C....   D....,  \ Sureties. 


OP   INJUNCTION.  55 

WEIT  OF  REPLEVIN. 


No.  44. 

State  of  Io-\va, 


,  -,  .  r  SS. 

bounty, 


In  thb  Disteict  Court,  ....  Term,  A.  D.,  18. . 
The  State  of  Iowa,  to  the  sherijf  of  said  county,  greeting: 

For  as  much  as  A  B,  as  plaintiff  has  given  approved  security 
for  prosecuting:  his  suit  with  effect  against  C  D,  as  defendant  for 
the  wrongful  detention  of  the  following,  viz:  [here  describe  par- 
ticularly and  fully  the  property  claimed,]  as  it  is  said  and  alleged 
in  said  plaintiff's  jietition,  now  filed  in  my  office,  and  also  for 
making  return  of  said  property  with  costs  and  damages,  if  the 
same  shall  be  adjudged  against  him.  Therefore  yow  are  hereby 
commanded  in  the  name  of  the  State  of  Iowa,  that  without  delay 
you  replevy  and  deliver  to  the  said  plaintiff,  the  property  above 
described,  and  that  you  make  return  of  your  doings  hereon  to  our 
next  ....  Court,  to  be  holden  at  ....  in  said  county,  on  the  first 
day  of  the  next  regular  term  thereof. 

Witness, clerk   of  said    ....  Court,  and  seal  of  said 

court,  hereto  affixed  at  office  in  .  . . . ,  this  the  ....  day  of  .... 
A.  D.  18. ..  ,  Clerk  of Court. 


V.    OF  INJUNCTION. 

Allowance  of  writ  and  bond. — An  order  for  the  allowance 
of  an  injunction  can  only  issue  after  the  filing  of  a  bond,  in  the 
office  of  the  clerk  of  the  proper  court,  in  a  penalty  to  be  fixed 
by  the  court  or  judge,  with  sureties  to  be  approved  by  the  clerk, 
and  conditioned  to  pay  all  damages  which  may  be  adjudged 
against  the  petitioner  by  reason  of  said  injunction;  and  where 
proceedings  in  a  civil  action  or  on  a  judgment  are  sought  to  be 
enjoined,  the  bond  must  be  further  conditioned  to  pay  such  judg- 
ment or  comply  with  such  final  orders,  if  the  injunction  is  not 
made  perpetual,  or  to  pay  any  judgment  that  may  ultimately  be 
recovered  against  the  party  obtaining  the  injunction,  on  the  cause 
of  action  enjoined.     Code  Sec.  3396. 

The  bond  may  be  in  the  following  form: 

INJUNCTION  BOND. 
No.  4G. 

Knoxo  all  'men,  by  these  prfsents,  That  we,  A  B,  principal, 
and  C  D  and  E  F,  sureties,  are  held  and  firmly  bound  unto  G  H 
in  the  penal  sum  of    dollars,  lawful  money  of  the    United 


66  DUTY  RELATING  TO  PROCESS. 

States,  well  and  truly  to  be  paid  to  the  said ,  and  to 

....  heirs,  executors  and  assigns. 

The  condition  of  the  obligation  is  such,  that  whereas,  the  said 
A  B,  on  this  ....  day  . . . . ,  tiled  in  the  office  of  the  clerk  of  the 
....  Court  of  the  State  of  Iowa,  in  and  for  ....  county,  a  petition 
praying  the  issuance  of  an  injunction  to  restrain  the  said  defend- 
ant from  [here  state  the  act  or  thing  to  be  enjoined.] 

And  whereas  on   the    ....    day  of    . .  .  .,  18. .,  the  Honoral)lo 

,  judge  of  said   court,  made  an  order   indorsed  on  said 

petition,  allowing  said  writ  upon  filing  a  bond  in  the  penal  sum 
of  ....  dollars,  to  be  approved  by  the  clerk  of  said  court. 

Now  therefore  if  the  said  A  B  shall  and  will  pay  all  the  dam- 
ages which  maybe  adjudged  against  him  by  reason  of  such  injunc- 
tion, then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

Dated  this day  of ,  A.  D.  18 . . . 

,  Principal. 

'  [•  Sureties. 

[An7iex  affidavit  of  sureties  and  approval  of  the  bond  by  the 
clerk.'] 

WRIT  OF  INJUNCTIOX. 
No.  46. 

The  State  of  Iowa  to  C  D,  defendant : 

Whereas,  A  B,  as  plaintifi",  has  this  day  filed  in  the  office  of  the 

Court  of  the  State  of  Iowa,  in  and  for  ....  county,  a  petition 

duly  sworn  to,  making  C  D  defendant  therein,  and  praying  for 
the  allowance  of  a   writ  of    injunction  against  said  defendant: 

And  whereas,  the  Honorable ,  judge  of  the  ....  Court 

of  said  county,  has  made  an  order  allowing  said  writ  of  injunc- 
tion to  issue,  upon  the  filing  of  a  bond  with  sureties,  pursuant  to 
said  order.  And  whereas,  said  order  has  been  complied  with, 
and  such  bond  filed  and  approved:  Now,  therefore  you,  the  said 
C  D,  defendant,  as  aforesaid,  in  the  name  and  by  the  authority  of 
the  State  of  Iowa,  are  hereby  strictly  enjoined  and  restrained 
from  [here  insert  the  matter  or  thing  the  defendant  is  restrained 
doing]  until  the  further  order  of  our  said  court  in  the  premises. 

To  the  sheriff  of  ... .  coxinty: 

You  are  hereby  commanded  to  make  due  service  of  this  writ 
upon  said  defendant,  and  hereof  fail  not,  and  make  return  of  this 
writ  unto  our  said  ....  Court,  with  your  doings  hereon,  on  the 
first  day  of  the  next  term  of  our  said  ....  Court. 

Witnens,    ,  clerk  of  the  court,  and  the  seal  thereof 

hereto  affixed,  this  ....  day  of  . . . . ,  A.  D.  18 . . . 

,  Clerh. 


SELECTION   AND   SUMMONING    OF   JURORS.  57 

VI.    OF    THE     SELECTION     AND     SUMMONING    OF 

JURORS. 

Duties  of  the  clerk. — In  reference  to  the  number  of  grand 
and  trial  jurors  and  the  mode  of  selecting  and  summoning  them, 
and  the  clerk's  duty  connected  therewith,  the  Code  provides  as 
follows: 

Kumber.— Section  231.  The  number  of  grand  jurors  shall  be  fifteen,  and  in 
counties  containing  less  than  fifteen  thousand  inhabitants  as  shown  by  the  last  prece- 
ding census,  the  tri'\l  jurors  shall  consist  of  the  same  number,  unless  the  judge  other- 
wise orders.  But  in  counties  containing  a  greater  number  of  inhabitants,  the  number 
of  trial  jurors  shall  be  twenty-four. 

Failure  of  trial  jurors  to  attend.— Sec.  232.  Should  there  not  be  the  number 
of  trial  jurors  in  attendance,  as  provided  in  the  preceding  section,  by  reason  of  the 
failure  of  the  persons  summoned  to  attend,  or  because  excused  as  provided  in  section 
two  hundred  and  thirty  of  this  chapter,  the  requisite  number  of  persons  to  supply 
the  deficiency  shall  be  drawn  in  the  same  manner  as  provided  in  sections  two  hun- 
dred and  forty  and  two  hundred  and  forty-one  of  this  chapter.  The  persons  so 
drawn  shall  be  forthwith  summoned  to  appear,  and  serve  as  trial  jurors  during  the 
term. 

Disoliarge  of. — Sec.  233.  If,  in  the  judgment  of  the  court,  the  business  of  the 
term  does  not  require  the  attendance  of  all,  or  a  portion  of  the  trial  jurors,  they,  or 
such  portion  as  the  court  deems  proper,  may  be  discharged.  Should  it  afterward 
appear  that  a  jury  is  required,  the  court  may  direct  them  to  be  resummoned,  or 
empanel  a  jury  from  the  bystanders. 

Lists. — Sec.  234.  Two  jury  lists,  one  consisting  of  seventy-five  persons  to  serve 
as  grand  jurors,  and  one  consisting  of  one  hundred  and  fifty  persons,  or,  in  counties 
containing  more  than  twenty  thousand  inhabitants,  of  two  hundred  and  fifty  persons 
to  serve  as  trial  jurors,  and  composed  of  persons  competent  and  liable  to  serve  as 
jurors,  shall  annually  be  made  in  each  county  from  which  to  select  jurors  for  the 
year  commencing  on  the  first  day  of  January. 

Sec.  235.  Should  there  be  less  than  the  required  number  of  such  persons  in  any 
county,  the  list  shall  compose  all  those  who  answer  the  above  description  in  the  same 
proportion. 

How  selected. — Sec.  236.  On  or  before  the  first  Monday  in  September  in  each 
year,  the  county  auditor  shall  apportion  the  nimiber  to  be  selected  from  each  election 
precinct,  as  nearly  as  practicable  in  proportion  to  the  number  of  votes  polled  therein 
at  the  last  general  election,  and  shall  deliver  a  statement  thereof  to  the  sheriff. 

Sheriff  to  serve  notice. — Sec.  237.  The  sheriff  shall  cause  a  written  notice  to  be 
delivered  to  one  of  the  judges  of  election  in  each  precinct  of  the  county,  on  or 
before  the  day  of  the  general  election  in  each  year,  informing  them  of  the  number 
of  jurors  apportioned  for  the  ensuing  year  to  their  respective  precincts. 

Duty  of  judge  of  election.— Sec.  238  The  judges  shall  thereupon  make  the 
requisite  selection,  and  return  lists  of  names  as  selected  to  the  auditor  with  the  returns 
of  the  election,  and  incase  the  judges  of  election  shall  fail  to  make  and  return  said  lists 
as  herein  required,  the  county  canvassers  shall,  at  the  meeting  to  canvass  the  votes 
polled  in  the  county,  make  such  lists  for  the  delinquent  precincts,  and  the  auditor 
shall  file  said  lists  in  his  office  and  cause  a  copy  thereof  to  be  recorded  in  the  elec- 
tion book. 


58  DUTY  KELATING  TO  PROCESS. 

Term  of  service.— Sec.  239.  Grand  jurors  shall  be  selected  for  the  first  term  in 
the  year  at  which  jurors  are  required,  commencing  next  after  the  first  day  of  January 
in  each  yearj  and  shall  serve  for  one  year.  Trial  jurors  shall  be  selected  for  each 
term  wherein  they  are  required  ;  but  no  person  shall  be  required  to  attend  as  a  trial 
juror  more  than  two  terms  in  the  same  year,  and  in  counties  containing  a  population, 
of  more  than  five  thousand  inhabitants,  it  shall  be  a  cause  of  challenge  that  tlje 
person  has  served  on  a  jury  in  a  court  of  record  within  one  year,  unless  he  be  a 
member  of  the  regular  panel. 

Auditor  write  names.— Sec.  240.  At  least  twenty  days  prior  to  the  first  day  of 
any  term  at  which  a  jury  is  to  be  selected,  the  auditor,  or  his  deputy,  must  write  out 
the  names  on  the  lists  aforesaid  which  have  not  been  previously  drawn  as  jurors  dur- 
ing the  year,  on  separate  ballots,  and  the  clerk  of  the  district  court,  or  his  deputy, 
and  sheriff  having  compared  said  ballots  with  the  lists,  and  corrected  the  same  if 
necessary,  shall  place  the  ballots  in  a  box  provided  for  that  purpose. 

Clerk  to  draw :  issue  precept.— Sec.  241.  After  thoroughly  mixing  the  same 
the  clerk,  or  his  deputy,  shall  draw  therefrom  the  requisite  number  of  jurors  to  serve 
as  aforesaid,  and  shall,  within  three  days  thereafter,  issue  a  precept  to  the  sheriff, 
commanding  him  to  summon  the  said  jurors  to  appear  before  the  court  as  provided 
in  section  two  hundred  and  thirty  of  this  chapter. 

Sheriff  to  serve. — Sec.  242.  The  sheriff  shall  immediately  obey  such  precept, 
and,  on  or  before  the  day  for  the  appearance  of  said  jurors,  must  make  return  thereof, 
and  on  fjiilure  to  do  so,  without  sufficient  cause,  is  liable  to  be  fined  for  a  contempt 
in  any  amount  not  exceeding  fifty  dollars. 

Grand  jurors  to  attend. — Sec.  24.3.  Except  when  required  at  a  special  term 
which  has  been  called  in  vacation,  the  grand  jury  need  not  be  summoned  after  the 
first  term,  but  must  appear  at  the  next  term  without  summons,  under  the  same  pen- 
alty as  though  they  had  been  regularly  summoned. 

When  preospt  is  set  aside. — Sec.  244.  Where,  from  any  cause,  the  persons  sum- 
moned to  serve  as  grand  or  trial  jurors  fail  to  appear,  or  when  from  any  cause  the 
court  shall  decide  that  the  grand  or  trial  jurors  have  been  illegally  elected  or  drawn, 
the  court  may  set  aside  the  precept  under  which  the  jurors  were  summoned,  and 
cause  a  precept  to  be  issued  to  the  sheriff  commanding  him  to  summon  a  sufficient 
number  of  persons  from  the  body  of  the  county,  to  serve  as  jurors  at  the  term  of  court 
then  being  holden,  which  precept  may  be  made  returnable  forthwith,  or  at  some  sub- 
sequent day  of  the  term,  in  the  discretion  of  the  court. 

VII.     OF  COMMISSION  TO  TAKE  DEPOSITIONS. 

The  Code  provides  as  follows  in  reference  to  the  clerk's  duty 
on  applications  for  commissions  to  take  depositions. 

Notice;  action  before  a  justice. — Section  3727.  Reasonable  notice  must  be 
given  the  adverse  party  of  a  time  when  a  commission  will  be  sued  out  of  the  office  of 
the  clerk  of  the  court  in  which  the  action  is  pending ;  if  such  action  is  in  an  inferior 
court,  then  from  the  office  of  the  clerk  of  the  circuit  court  for  taking  the  deposition 
of  the  witness,  naming  him,  which  notice  must  be  accompanied  with  a  copy  of  the 
interrogatories  to  be  asked  such  witness. 

Cross  interrogatories. — Sec.  3728.  At  or  before  the  time  thus  fixed,  the  oppo- 
site party  may  file  cross-interrogatories.  If  cross-interrogatories  are  not  filed,  the 
clerk  shall  file  the  following : 


COMMISSION   TO   TAKE  DEPOSITIONS.  59 

1.  Are  you  directly  or  indirectly  interested  in  this  action?  and  if  interested, 
explain  the  interest  you  have  ; 

2.  Are  all  your  statements  in  the  foregoing  answers  made  from  your  personal 
knowledge?  and  if  not,  do  your  answers  show  what  are  made  from- your  personal 
knowledge,  and  what  are  from  information,  and  the  source  of  that  information?  if 
not,  now  show  what  is  from  information,  and  give  its  source  ; 

3.  State  everything  you  know  concerning  the  sublect  of  this  action,  favorable  to 
either  party. 

Eules. — Sec.  3729.  Subject  to  the  regulations  herein  contained,  the  court  may 
establish  farther  rules  for  taking  depositions  and  all   other  acts  connected  therewith. 

Eeasonable  notice  :  what  deemed. — Sec.  3730.  The  notice  hereinbefore  men- 
tioned, is  at  least,  when  served  on  the  attorney,  ten  days,  and  when  served  on  the 
party  within  the  county,  five  days ;  if  served  on  the  party  anywhere  else,  the  notice 
shall  be  that  required  under  other  similar  circumstances  in  the  service  of  an  original 
notice;  and  when  depositions  are  to  be  taken  in  pursuance  of  the  first  of  the  above 
methods,  one  day  in  addition  must  be  allowed  for  every  thirty  miles  travel  from'  the 
place  where  the  notice  is  served,  to  that  where  the  depositions  are  to  be  taken.  No 
party  shall  be  required  to  take  depositions  when  the  court  is  in  actual  session. 

How  served. — Sec.  3731.  The  notice,  or  notice  and  copy  of  interrogatories,  may 
be  served  by  the  same  persons  on  the  same  persons  in  the  same  manner,  and  may  be 
returned,  and  the  return  shall  be  authenticated  in  the  same  way,  as  should  be  an 
original  notice  in  the  same  cause  when  served  other  than  by  publication. 

On  attorney. — Sec.  3732.  It  may  also  be  served  personally  on  any  attorney  of 
the  adverse  party  of  record  in  the  cause.  ' 

By  filing  in  clerk's  office. — Sec.  3733.  Whenever  the  adverse  party  has  been 
notified  by  publication  only,  and  has  not  appeared,  he  shall  be  deemed  served  with 
the  notice,  or  the  notice  and  interrogatories,  by  the  filing  of  the  same  with  the  clerk 
in  the  cause. 

Commission:  form  of. — Sec.  3734.  The  commission  issues  in  the  name  of  the 
court  and  under  its  seal.  It  must  be  signed  by  the  clerk,  and  need  contain  nothing 
but  the  authority  conferred  upon  the  commissioner,  instructions  to  guide  him,  and  a 
statement  of  the  cause  and  court  in  which  the  testimony  is  to  be  used,  and  a  copy  of 
the  interrogatories  on  each  side  appended. 


COMMISSION  TO  TAKE  DEPOSITION. 
No.  47. 

State  of  Iowa,     \ 
County,      j 

To Know  ye  that   we,    the ....  Court  of  the 

county  of....,  State  of  Iowa,  reposing  full  confidence  in  your 
integrity  and  fidelity,  do  by  these  presents,  constitute,  empower, 
and  commission  you  to  summon  and  cause  to  come  before  you  at 
such  time  and  place  as  you  shall  appoint,  according  to  the    notice 

hereto  attached,  the  "witnesses  hereinafter  named;  to- wit:      

material  witnesses,  as  it  is  said,  on  the  part  and  behalf 

of  the.  . .  .in  a  suit  wherein.  .  .  .plaintiff,  and.  .  .  .defendant,  now 
pending  in  our  said  court,  and.... to  examine  on  corporal  oath 
or  affirmation,  first  to. .  .  .administered,  true  answers  to  make  to 
the  several  interrogations  accompanying  this  commission,  and  the 


60  DUTY  RELATING  TO  PROCESS. 

same,  when  taken,  to  certify,  seal  up,  and  forward  to  the  clerk  of 
said  court,  with  all  convenient  dispatch,  according  to  the  instruc- 
tions hereto  attached. 

"Witness,. . .  .clerk  of  said  court,  and  the  seal  thereof  affixed, 

at  office  in in  said   county,  this  the day  of A.  D,  18. . 

GUrh.  . 

Instructions  for  taking  depositions  .—Section  3738, 
Code  1873,  requires  that,  "Where  a  deposition  is  taken  upon 
interrogatories,  neither  party,  nor  his  agent  or  attorney,  shall  be 
present  at  the  examination  of  a  witness,  unless  both  parties  are 
present  or  represented  by  an  agent  or  attorney,  and  the  certificate 
shall  state  such  fact,  if  party  or  agent  is  present." 

The  officer  taking  the  depositions  will  observe  the  following 
forms  and  mode  of  proceeding,  commencing  thus: 

Deposition  of  witnesses  produced,  sworn  and  examined  at ... . 

in  the  county  of. ... ,  and  State  of ,  before  me  [name  of  officer 

and  style  of  office],  in  a  certain  case,  now  pending  in  the. .. . 
Court  of. .  .  .county.  State  of  Iowa,   between. .  .  .,   plaintiO",    and 

,  defendant,  on  the  part  of  the. . . .  A  B,  of  lawful  age,  l)eing 

produced,  sworn,  and  examined  on  the  part  of  the . .  . . ,  deposeth 
and  saith;  [Here  insert  each  interrogatory  as  it  occurs,  and  the 
answer  thereto,  immediately  following.] 

Every  deposition  must  be  reduced  to  writing  by  some 
person  who  is  neither  of  the  parties,  attorneys  of  either,  nor  in 
anywise  interested  in  the  event  of  the  suit,  in  presence  of  the 
officer  before  whom  it  is  taken,  and  signed  by  the  witness. 

If  any  paper  or  exhibit  is  produced  and  proved,  or  referred  to 
by  a  witness,  it  should  be  described  in  his  deposition,  and  referred 
to  by  the  deponent  in  such  a  manner  that  it  may  be  identified 
when  the  deposition  is  read,  and  all  such  papers  and  exhibits  must 
be  attached  to  and  returned  with  the  deposition. 

The  officer  will  annex  at  the  foot  of  the  deposition  of  each  wit- 
ness, the  following  certificate: 

I,  [insert  the  name  of  officer  and  style  of  office],  do  hereby 
certify  that  A  B,  the  deponent,  whose  place  of  residence  is. . . . 
■was  by  me  sworn,  (or  affirmed),  to  testify  the  whole  truth  of  his 
(or  her)  knowledge,  touching  the  matter  in  controversy  in  the 
cause  aforesaid,  that,  deponent  was  examined,  and  his  (or  her) 
examination  reduced  to  writing  by. .  . .,  who  is  neither  of  the  par- 
ties, nor  attorney  of  either,  nor  in  any  wise  interested  in  the  suit, 


COMMISSION  TO  TAKE   DEPOSITIOlSrS.  61 

and  after  being  carefully  by  me  read  over  to  the  said  deponent, 
the  same  was  sworn  to  and  subscribed  by  the  said  deponent  in 
my  presence,  on  the ....  day  of.  . . . ,  A.  D.  187 .  . ,  between  the 
hours  of . .  . .  A.  M.,  and. ...  p.  M.,  of  said  day.  At  [here  name  the 
place,  county,  and  State].  Given  and  certified  [here  give  the  date], 
under  my  hand  and  seal  official,  this.  .  . .  day  of. . . . ^  A.  D.  18. . 
[If  the  officer  has  a  seal  it  must  be  affixed.] 


Then  proceed  with  other  depositions  (if  any),  in  the  same  form, 
annexing  a  certificate  to  each. 

When  all  the  witnesses  who  appear  have  been  sworn  and  exam- 
ined, and  their  depositions  reduced  to  writing,  subscribed  and 
certified  as  above,  the  officer  will  attach  to  the  deposition  all 
papers  and  exhibits  proved  or  referred  to  in  the  examination,  the 
commission  and  notice  [herewith  inclosed,]  with  the  following 
certificate  indorsed  thereon  or  attached  thereto: 

The  State  of ( 

County,      i 

I,  [name  of  officer  and  style  of  office],  within  and  for  [name  the 
place],  or  duly  commissioned  for  that  purpose,  do  certify  that,  in 
pursuance  of  the  within  [or  annexed]  commission  and  notice, 
came  before  me  at  [name  the  place  where  the  testimony  was 
taken],  A,  B,  C,  D,  etc.,  [insert  the  names  of  all  witnesses]  who 
were  there  by  me  then  sworn  and  examined,  and  such  examina- 
tion reduced  to  writing  by  [the  name  of  the  person],  who  is  nei- 
ther of  the  parties,  their  attorney,  nor  in  anywise  interested  in 
the  event  of  the  suit,  and  after  being  by  me  read  over  to  each  of 
said  deponents,  the  same  was  sworn  to  and  subscribed  to  by  said 
witnesses  respectively  in  my  presence,  and  their  depositions  are 
now  herewith  returned,  [State  if  either  or  both  parties  were 
present  at  the  examination  personally,  or  by  agent  or  attorney.] 
Given  under  my  hand  and  seal  official  hereto  affixed,  at  [name  of 
place,  county,  and  State],  this  [give  date]. 


The  return  must  be  accompanied  by  a  certificate  of  the  official 
character  of  the  officer  when  the  depositions  are  taken  by  any 
judge,  notary  public,  or  justice  of  the  peace,  attested  by  the  seal 
of  the  State  of,  or  by  the  seal  of  any  court  of  record  of  the 
county  or  city  wherein  such  depositions  shall  be  taken,  which  may 
be  in  the  following  form: 

It  is  iieheuy  certified,  that. . . .,  on  [here  insert  the  date  at 
which  the   depositions  were    taken    and    certified],. ..  .was  (and 


63  DUTY  RELATING  TO  PROCESS. 

now  is) ... .  [state  tlie  style  of  office],  . . . . ,  State  of. ... ,  duly 
coniniiasioned  and  acting  as  such,  and  that  full  faith  and  credit 
are  due  to  his  acts  as  such. 

In    testimony    whereof,    I,  A  B,  [here  state  the  style  of 
office],  have  hereunto  subscribed  my  name  and  affixed 
[l.  s.]       the  seal  of  said  court  at  office,  this ....  day  of...., 
eighteen  hundred  and.  . . . 


The  officer  taking  the  depositions  is  required  to  enclose  in  a 
strong  envelope,  securely  sealed,  the  depositions,  papers  and 
exhibits,  commission  notice  and  certificates,  and  direct  the  same 
to  the  clerk  of  the.  . .  .Court  of,  . .  .county,  Iowa,  noting  on  some 
convenient  part  of  the  envelope  the  style  of  the  cause  and  con- 
tents; thus: 


Depositioiis  on  the  part  of. 


The  depositions  must  be  begun  on  the  day  mentioned  in  the 
notice.  If  they  cannot  be  completed  on  that  day,  the  taking  of 
them  may  be  adjourned  to  the  succeeding  day,  at  the  same  place 
and  between  the  same  hours.  The  person  taking  them  should,  in 
such  case,  make  the  following  entry  closing  the  business  for  that 
day,  viz: 

Not  being  able  to  complete  the  taking  of  said  depositions,  by 
reason  that  [here  insert  the  reason],  I  adjourn  the  further  tak- 
ing of  the  same  until  tomorrow,  then  to  be  continued  at  the  same 
place,  and  between  the  same  hours,  mentioned  in  the  annexed 
notice. 


On  the  succeeding  day,  let  the  person  taking  the  depositions 
commence  as  follows: 

Pursuant  to  the  adjournment  as  above  stated,  on  the. . .  .day  of 
. . . .,  in  the  year  eighteen  hundred  and. .  . .,  between  the  hours 
of. .  .  .in  the  forenoon,  and. . .  .in  the  afternoon,  I  continued  the 
taking  of  said  depositions,  as  follows: 

A  B,  in  continuance  of  his  depositions,  commenced  yesterday 
on  his  oath,  further  says,  etc.  . 

The  foregoing  directions  must  be  strictly  observed,  or  the  dep- 
osition will  be  unavailing. 


COMMISSION"   TO   TAKE  DEPOSITIONS.  G3 

If  the  officer  taking  the  deposition  has  a  seal  of  office,  it  must 
be  affixed  to  every  certificate. 

The  officer  taking  the  deposition  must  write  out  each  interroga- 
tory in  full,  and  insert  the  answer  just  below  the  proper  question. 

The  depositions  must  be  returned  by  mail,  unless  some  mode 
is  agreed  upon  between  the  parties. 

CE0SS-INTEEE0GAT0RIE8. 
lsro.4S. 


Whereas,  the. . .  .has  failed  to  appear  and  file  cross-interroga- 
tories in  the  above  entitled  case  as  by  law  he  was  privileged  to; 
Now,  therefore,  I,.,.. clerk  of  said  court,  agreeable  to  Sec. 
3728  of  the  Code  of    1873,   do  file  the  following,  to-wit: 

1st.  Are  you  directly  or  indirectly  interested  in  this  action? 
and  if  interested,  explain  the  interest  you  have. 

2d.  Are  all  your  statements  in  the  foregoing  answers  made 
from  your  personal  knowledge;  and  if  not,  do  your  answers  show 
what  are  made  from  your  personal  knowledge,  and  what  from 
information,  and  the  source  of  the  information?  if  not,  show  what 
is  from  information  and  give  the  source. 

3d.  State  everything  you  know  concerning  the  subject  of  this 
action,  favorable  to  either  party. 

Witness, ....  clerk  of  said  court,  this day  of . ...  A.  D.  18 . . . 


64  OTHER   DUTIES,    AKD    CONPENSATION. 


CHAPTEETI. 


OTHER  DUTIES,  AND  COMPENSATION. 

I.    OF    ENTERING   MINUTES    ON    THE    MARGIN   OF 
MORTGAGES. 

Whenever  a  judgment  of  foreclosure  shall  be  entered  in  any 
court,  the  clerk  thereof  should  make  upon  the  margin  of  the  rec- 
ord of  the  mortgage  foreclosed,  in  the  recorder's  office,  a  minute 
showing  that  said  mortgage  was  foreclosed;  in  what  court  fore- 
closed, and  giving  the  date  of  the  decree;  and  when  such  decree 
shall  be  fully  paid  and  satisfied  upon  the  judgment  docket  of 
such  court,  the  clerk  should  enter  satisfaction  in  full  upon  the 
margin  of  such  mortgage,  and  he  is  allowed  for  such  services 
twenty- five  cents,  to  be  taxed  as  a  part  of  the  costs  in  the  case. 
Code,  Sec.  3328. 

MINUTE   OF   FOEECLOSUEE. 
No.  49. 

State  of  Iowa      ) 
County.  5 


I,  A  B,  clerk  of  the  ....  Court  of  said  county,  hereby  certify 
that  a  judgment  and  decree  of  foreclosure  of  this  mortgage  was 
entered  in  said  court  on  the  ....  da}^  of  18 . . 

Dated  this  ....  day  of  . . . . ,  18 . . . . 

A....   B   ....,  Clerk. 


ENTRY  OF  SATISFACTION  BY  THE  CLERK. 
No.  50. 

State  of  Iowa,      )  , 
County,       )  ^  ' 

I,  A  B,  clerk  of  the  ....  Court  of  said  county,  hereby  certify, 
that  the  judgment  and  decree  of  foreclosure  of  this  mortgage  is 


TO   CERTIFY   RECORDS.  65 

fully  paid,  and  satisfied  upon  the  judgment  docket  of  said  court 
where  entered,  and  this  mortgage  is  thereby  satisfied  in  full. 
Dated  this  ....  day  ....  18 . . . 

A....   B....,  Clerk. 

11.     TO  CERTIFY  RECORDS. 

Every  officer  having  the  custody  of  a  public  record  or  writing, 
is  bound  to  give  any  person  on  demand  a  certified  copy  thereof 
on  payment  of  the  legal  fees  therefor;  and  the  certificate  of  a 
public  officer  that  he  has  made  diligent  and  ineffectual  search  for 
a  paper  in  his  office,  is  of  the  same  efficacy  in  all  cases  as  if  such 
officer  had  personally  appeared  and  sworn  to  such  facts,  and  the 
signature  of  the  officer  is  presumed  to  be  genuine  until  the  con- 
trary is  shown.     Code,  Sec.  3706,  3J'08. 

How  proved. — A  judicial  record  of  this  State,  or  of  any  of 
the  federal  courts  of  the  United  States,  may  be  proved  by  the 
production  of  the  original  or  by  a  copy  thereof,  certified  by  the 
clerk  or  person  having  the  legal  custody  thereof,  and  authenti- 
cated by  his  seal  of  office  if  he  have  one.     Code,  Sec.  3712. 

CAiPTION  AND -CERTIFICATE. 
No.  51. 

State  of  Iowa,  ) 
County,  \ 

23e  it  rememhered.,  That  heretofore,  to-wit:  At  a  term  of  the 

.  Court  of  the  State  of  Iowa,  begun  and  held  at  . . . . ,  in  and 

for  said  countj'^,  on  the  ....  Monday,  the  ....  day  of  . . . , ,  A.  D. 

18   ..,  present  the  Hon ,  Judge  of  the  ....    .Judicial 

....  of  the  State  of  Iowa, ,  Sherifi"  of  said  county,  and 

,  clerk  of  said  court,  and  the  following  entitled  causes 

coming  on  to  be  heard,  on  the  . .  .  day  cf  .  . . . ,  A.  D.  18  . . ,  and 
still  during  said  term  of  said  court,  the  following  among  other 
proceedings  were  had  therein,  to-wit: 

Plaintiffs 

V. 

Dpfendant. 

[Here  set  forth  the  whole  or  any  part  of  the  record  that  may  be 
required.] 

County.  J  ' 

I, clerk  of  the  ....  Court  of  the  State  of  Iowa,  in 

and  for  said  county,  do  hereby  certify  that  the  above  and  fore- 

5 


State  of  Iowa, 


66  OTHER   DUTIES   AND   COMPENSATION. 

going  is  a  true  and  perfect  transcript  of  the  record  entry  of  .... 
....  in  the  above  entitled  causes  as  fully  as  the  same  remains  on 
record  in  my  office. 

In  testimony  whereof,  I  have  hereimto  set  my  hand  and  affixed 
the  seal  of  said  court,  at  the  court  house  in  . . . . ,  in  said  county, 

this day  of A.  D.  18 . . . 

,  Cleric  of  said  Courts 

By ,  Deputy. 

III.     DUTY  ON  APPEALS  TO  THE   SUPREME  COURT. 
When  perfected :    and  transcript.— An  appeal  to   the 

Supreme  Court  is  not  perfected  until  the  notice  thereof  has  been 
served  upon  both  the  adverse  party  and  the  clerk,  and  the  clerk  paid, 
or  secured  his  fees,  for  a  transcript;  whereupon  the  clerk  should 
forthwith  transmit  by  mail,  express,  or  messenger  not  a  party  nor 
the  attorney  of  a  party  to  the  action,  a  transcript  of  the  record,  or 
so  much  thereof  as  the  appellant  in  writing  may  direct;  to  which 
the  clerk  should  append  copies  of  the  notice  of  appeal,  and  the 
supersedeas  bond  if  any.     Code,  Sec.  3179. 

Form  of  certificate  thereto :  and  evidence. — With  a  little 

change  the  certificate  No.  51,  may  be  used  by  the  clerk  in  certi- 
fying transcripts  on  appeal.  If  the  evidence  is  required  to  be 
certified,  it  should  be  certified  in  its  original  form,  and  as  all  the 
evidence  used  on  the  trial  of  the  cause.     Code,  Sec.  3184. 

To  approve  the  supersedeas  bond. — The  clerk  has  also 

the  approval  of  the  bond  given  for  a  stay  of  execution  in  appealed 
causes.  It  should  be  in  a  penalty  at  least  twice  the  sum  of  the 
judgment  and  costs;  and  if  the  judgment  is  not  for  the  payment 
of  money,  the  penalty  to  be  fixed  by  the  clerk,  should  be  suffi- 
cient to  save  the  appellee  harmless  from  the  consequences  of 
taking  the  appeal,  and  if  execution  has  issued  before  the  bond  is 
filed,  the  clerk  should  countermand  the  same.  Code,  Sections 
318G,  3187,  3190,  3191,  3192. 


SUPERSEDEAS  BOND. 
No.  52. 

Know  all  men  hy  these  presents :  That  we,  A  B,  principal,  and 
C  D  and  E  F,  sureties,  are  held  and  firmly  bound  unto  G  H,  in 
the  sum  of  ....  dollars,  lawful  money  of  the  United  States,  well 


SUMMARY   OF   OTHEK   DUTIES,   ETC.  67 

and  truly  to  be  paid  to  the  said  G  H,  his  heirs,  executors,  and 
assigns. 

The  condition  of  this  obligation  is  such,  that  whereas,  the  said 
A  B  has  appealed  from  the  judgment  of  the  , . . .  Court  of  the 
State  of  Iowa,  in  and  for   ....  county,  rendered  on   the  ....  day 

of    . ,A.  D.  18..,in  an  action,  then  pending  in  said   court, 

wherein   the  said ,  plaintiff,  and  the  said    , 

defendant, 

Now,  if  the  said  appellant,  A  B,  shall  pay  to  the  said  appellee 
all  costs  and  damages  that  shall  be  adjudged  against  said  appel- 
lant on  said  appeal,  and  shall  also  satisfy  and  perform  the  said 
judgment  appealed  from,  in  case  it  shall  be  affirmed,  and  any 
judgment  or  order  which  the  Supreme  Court  may  render  or  order 
to  be  rendered  by  the  said  ....  Court,  then  this  obligation  to  be 
void,  otherwise  to  remain  in  full  force  and  virtue. 

Dated  this day  of ,  A.  D.  18. . . 

A . . . .   B . ,  Principal. 

p  ^         '  |-  Sureties. 

\Add  qualification  of  sureties  and  approval]. 


IV.    SUMMARY  OF   OTHER  DUTIES,  ETC. 

The  clerk  is  required  to  attest  and  date  all  process  issued  by 
him  on  the  day  on  which  it  is  issued;  Code,  Sec.  188; issue  orders 
for  the  seizure  of  the  property  of  absconding  father,  etc.;  Code, 
Sec.  1343;  issue  marriage  licenses;  Code,  Sec.  2187;  to  keep  a 
register  of  marriages;  Code,  Sec.  2187;  to  bind  out  paupers  by 
indenture;  Code,  Sec.  2283;  to  watch  over  the  interests  of  appren- 
tices; Code,  Sec.  2287;  to  consent  to  the  adoption  of  orphan  chil- 
dren; Code,  Sec.  2308;  to  approve  bonds  in  probate  cases;  Code, 
Sec.  2321;  to  open  and  read  wills  of  testators;  Code,  Sec.  2338; 
to  fix  a  day  for  proving  wills  and  keep  the  probate  records;  Code, 
sections  2341,  2490;  to  make  a  complete  record  in  case  of  a  sale 
of  real  estate  by  an  executor  or  administrator;  Code,  Sec.  2492; 
to  record  the  bonds  of  guardians;  Code,  Sec.  2493;  to  issue  a  fee- 
bill  on  the  demand  of  any  person  entitled  to  fees  in  any  cause, 
after  sixty  days  from  the  rendition  of  a  judgment,  which  shall 
have  the  force  and  effect  of  an  execution;  Code,  Sec.  3842;  to  file 
transcript  of  justice  docket  delivered  to  him  for  that  purpose,  and 
enter  a  memorandum  thereof  in  his  judgment  docket,  noting  the 
time  of   such    filing;  Code,  Sec.  3508;  to  enter  judgments   on 


G8  OTHER   DUTIES   AND   COMPENSATION. 

confessions;  Code,  Sec.  2897;  to  approve  the  bonds  of  receivers; 
Code,  Sec.  2904;  to  make  out  a  bill  of  costs  on  appeals  to  the 
Supreme  Court;  Code,  Sec.  2945;  to  pay  costs  to  witnesses  entitled 
thereto  when  received;  Code,  Sec.  2947;  to  render  a  verified  state- 
ment of  fees  received  to  the  board  of  supervisors  at  each  regular 
session  of  the  board;  Code,  Sec.  3785;  to  pay  all  witness  fees 
unclaimed  for  six  months  into  the  county  treasury,  giving  the 
treasurer  a  written  statement  of  the  title  of  the  cause,  and  style 
of  the  court  in  which  the  same  was  pending,  with  the  name  of  the 
witnesses,  and  the  amount  each  one  is  entitled  to  receive;  Code, 
Sec.  378G;  to  report  to  the  Secretary  of  State,  on  or  before  the 
first  Monday  of  November  in  each  year,  the  number  of  convic- 
tions of  all  crimes  and  misdemeanors  in  the  District  Court  of  his 
county  for  the  year  preceding,  which  report  shall  show  the 
character  of  the  offense,  the  sentence  of  punishment,  the  occupa- 
tion of  the  convict,  whether  he  can  read  and  write,  his  general 
habits,  and  also  the  expenses  of  the  county  for  criminal  prosecu- 
tions during  the  year,  including,  but  distinguishing  the  compen- 
sation of  the  district  attorney;  Code,  Sec.  203;  to  give  attested 
copies  of  the  records  of  notaries,  deposited  in  his  office;  Code, 
Sec.  266;  to  issue  subpoenas  in  trials  of  contested  elections;  to 
make  an  entry  of  proceedings  in  habeas  corpus  cases;  Code,  Sec. 
3490;  to  issue  bench  warrants  on  the  order  of  the  judge  therefor, 
and  into  different  counties;  Code,  Sec.  4320;  to  issue  warrants  on 
the  order  of  the  court  for  contempt;  Code,  Sec.  3498;  to  issue 
letters  of  administration;  Code,  Sec.  2365;  and  in  vacation  of  the 
Probate  Court  to  appoint  executors,  administrators  and  guardians, 
and  to  issue  citations  and  other  notices;  Code,  Sec.  2315  and 
Chap.  43,  Ses.  L.,  1874. 

FEE-BILL  EXECUTION. 
No.  53. 

The  State  of  Iow^a,  To  the  sheriff  of  ... .  county.,  greeting: 

Whereas,  on  the  ....  day  of   . . . . ,  A.  D.  18 . . ,  by  the  judg- 
ment of  the    ....    Court  of  the  State  of  Iowa,  in  and  for    .... 

county, recovered  against ,  as  principal,  and 

as  surety,  the  sum  of  ....  dollars  debt,  and  the  further 

sum  of  ....  dollars  costs,  in  a  certain  action  then  pending  in  said 

court,  wherein  the  said was  plaintiff,  and  the  said  .... 

....  w . .  defendant . ,  which  said  sum  of  ... .  dollars  costs  is  still 
due. 


SUMMARY   OF   OTHEK   DUTIES,   ETC.  69 

And  whereas,  more  than  sixty  days  have  now  expired  from 
the  rendition  of  said  judgment,  and  said  judgment  has  not  been 
appealed,  removed  or  reversed. 

And  whereas,  the  following  schedule  contains  a  full,  true  and 
complete  statement  of  all  the  costs  in  said  cause  as  the  same 
appears  of  record  in  Fee-Book  No.  . .,  page  . .,  of  the  records  of 
the  clerk's  office  of  said  county,  to- wit: 


$    Cts. 


$    Cts, 


And  whereas,  the  said is  entitled  to  a  part  of  said 

cOvSts,  and  has  demanded  that  a  fee-bill  for  all  costs  of  said  judg- 
ment shall  be  issued,  and  served  as  by  statute  in  such  cases  made 
and  provided. 

You  are  therefore  hereby  commanded  to  cause  to  be  made  of 

the  goods  and  chattels,  lands  and  tenements  of  the  said 

in  your  county,  subject  to  execution,  the  said  sum  of  ...  dollars 
costs,  together  with  all  legal  costs  that  may  accrue  by  virtue  of 
this  writ.  And  have  said  moneys  in  our  said  court  in  seventy 
days  to    render    the    same   or   his    portion    thereof    unto    the 

said ;  and  have  you  then  and  there  this  writ  with  your 

doings  hereon. 

Witness ,  clerk  of  said  court,  with  the  seal  thereof 

hereto  affixed,  at ,  this  ....  day  of  . . . . ,  A.  D.  18 . . . 

,  Cleric. 


\ 


ss. 


BENCH  WARRANT. 
No.  54.. 

State  of  Iowa, 
County. 

To  any  peace  officer  in  the  State: 

An  indictment  having  been  found  in  the  District  Court  of  said 

county,  on  the  ....  day  of ,  A.  D.  18 . . ,  charging 

with  the  crime  of  [state  the  charge  as  in  the  indictment]. 

You  are,  therefore,  hereby  commanded  to  arrest  the  said  .... 
—  . ,  and  bring  him  before  said  court  to  answer  said  indictment, 
if  the  said  court  be  then  in  session  in  said  county,  or,  if  the  said 
court  be  not  then  in  session  in  said  county,  that  you  deliver  him 
into  the  custody  of  the  sheriff  of  said  county. 

Given  under  my  hand  and  the  seal  of  said  court,  at  my  office  in 
. . . . ,  in  the   county  aforesaid,  this  ....  day  of    . . . . ,  A.  D.  18 . . . 

By  order  of  the  judge  of  the  court. 

Clerk. 


70  OTHER   DUTIES   AND    COMPENSATION. 

WRIT  OF  ATTACHMENT  FOR  CONTEMPT. 


State  of  Iowa,       , 

'       ^  ss. 


No.  55. 

County.  ) 
To  the  sheriff  of  said  county,  greeting:  • 

Whereas,  in  the  presence  of  the  District  Court  of  said  county 
now  in  session,  it  has  been  proven  that  A  B  has  been  regularly 
summoned  as  a  grand  juror  at  the  term  of  the  District  Court  of 
said  county,  to  be  begun  and  held  at  the  court  house  in  .  . . ,  on 
the  ....  day  of  ....,18..,  and  he  having  failed  to  obey  said 
summons,  this  is  therefore  to  command  you  to  arrest  the  said  A  B, 
and  bring  him  before  the  District  Court  now  in  session  forthwith 
to  answer  for  contempt,  and  fail  not  at  your  peril. 

Given  under  my  hand  and  the  seal  of  the  District  Court  affixed 
this  ....  day  of  .'.  ..,  A.  D.  18, 


Clerk. 


VENIRK 


No.  56. 


State  of  Iowa, 
County, 


i  ss. 

C(mrt, Term,  18, 

To  the  sheriff  of  ... .  county,  greeting: 


You  are  hereby  commanded  to  summon ,  to  be  and 

appear  before  the  ....  Court  of  ....  county,  Iowa,  at  the  court 
house  in  said  county,  at  . .  .  o'clock,  A.  M.,  on  the  ....  day  of  .... , 
A.  D.  18.  .,  to  serve  as  ....  jurot-s,  and  then  and  there  to  con- 
tinue until  duly  discharged,  and  have  you  then  and  there  this  writ. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  and  affixed 
the  seal  of  said  court,  at  . . . . ,  this  the  ....  day  of  . . . . ,  A.  D. 
18..  Clerk. 


V.    CRIMES  AND  MISDEMEANORS. 

For  the  statute,  prohibiting  certain  acts,  and  defining  and  pun- 
ishing crimes  and  misdemeanors  in  office  the  reader  is  referred  to 
Chapter  One, 

Session  Laws  1874- — Additional  powers  and  duties  of  the 
clerk,  are  provided  for  by  the  Session  Laws  of  1874,  which  are 
as  follows: 

He  is  required  at  the  close  of  each  term  of  court  to  make  out  a 
certificate  for  each  juror,  of  the  amount  to  which  he  is  entitled 
for  his  services.  Ses.  Laws  1874,  Chap.  16.  To  keep  the  true  and 
correct  time  actually  occupied  by  the  jury  in  each  case,  and  tax 


FEES   AND    COMPENSATION.  71 

the  per  diem  fees  therefor,  as  costs  in  the  case,  and  when  col- 
lected to  pay  the  same  to  the  county  treasurer,  and  report  the 
same  to  the  board  of  supervisors,  at  each  regular  session  thereof. 
Ses.  Laws  1874,  C^ap.  32. 

He  has  power  to  appoint  guardians.  Ses.  Laws  1874,  Chap.  42; 
and  is  required  to  give  notice  of  the  hearing,  on  a  petition  for  the 
vacation  of  a  plat  of  town  lots,  in  some  newspaper  published  in 
the  county.     Ses.  Laws  1874,  Chap.  61. 

VII.    FEES  AND  COMPENSATION  OF  THE  CLERK. 

The  Code  provides  as  follows,  in  reference  to  fees  and  compen- 
sation of  the  clerk: 

Fees. — Section  3781.  The  clerk  of  the  district  and  circuit  court  shall  be  entitled 
to  charge  and  receive  the  following  fees : 

For  filing  any  petition,  appeal,  or  writ  of  error,  and  docketing  the  same,  one  dollar 
and  fifty  cents ; 

For  every  attachment,  fifty  cents; 

For  every  cause  tried  by  jury,  one  dollar  and  fifty  cents  ; 

For  every  cause  tried  by  the  court,  seventy-five  cents  ; 

For  every  equity  cause,  one  dollar  and  fifty  cents  ; 

For  each  injunction,  or  other  extraordinary  process  or  order,  one  dollar  ; 

For  all  causes  continued  on  application  of  a  party  by  affidavit,  fifty  cents  ; 

For  all  other  continuances,  fifteen  cents; 

For  entering  any  final  judgment  or  decree,  seventy-five  cents ; 

For  taxing  costs,  fifty  cents  ; 

For  issuing  execution  or  other  process  after  judgment  or  decree,  fifty  cents  ; 

For  filing  and  properly  entering  and  indorsing  each  mechanic's  lien,  the  same  to 
be  taxed  as  other  costs  in  case  a  suit  is  brought  thereoi\,  one  dollar; 

For  certificate  and  seal,  fifty  cents  ; 

For  filing  and  docketing  transcript  of  judgment  from  another  county  or  a  justice  of 
the  peace,  fifiy  cents; 

For  entering  any  rule  or  order,  twenty-five  cents; 

For  issuing  writ  or  order,  not  including  subpoenas,  fifty  cents  ; 

For  issuing  commission  to  take  depositions,  fifty  cents  ; 

For  entering  sheriff 's  sale  of  real  estate,  fifty  cents; 

For  entering  judgment  by  confession,  one  dollar; 

For  entering  satisfaction  of  any  judgment,  twenty-five  cents  ; 

For  all  copies  of  record  or  papers  filed  in  his  office,  transcripts,  and  making  com- 
plete record,  ten  cents  for  each  hundred  words  ; 

For  taking  and  approving  a  bond  and  sureties  thereon,  fifty  cents  ; 

For  declaration  of  intentions  by  an  alien  to  become  a  citizen,  twenty-five  cents  ; 

For  all  services  on  naturalization  of  aliens,  including  oaths  and  certificates,  fifty 
cents  ; 

In  criminal  cases. — In  criminal  cases,  and  in  all  causes  in  which  the  state  or 
county  is  a  party  [plaintiff,  the  same  fees  for  same  services  as  in  suits  between  private 


72  OTHEE   DUTIES   AND    COMPENSATION. 

parties.  When  judgment  is  rendered  against  the  defendant,  the  fees  shall  be  col- 
lected from  such  defendant.  Where  the  state  fails,  the  clerk's  fees  shall  be  paid  by 
the  county ; 

For  making  out  transcripts  in  criminal  cases  appealed  to  the  supreme  court,  when 
the  defendant  is  unable  to  pay,  for  each  one  hundred  words,  ten  cents,  to  be  paid  by 
the  county. 

Pensions  and  bounties. — Sec.  3782.  The  clerk  of  the  district  court  shall  certify 
under  the  seal  of  such  court,  to  all  applications  and  other  papers  requiring  the  cer- 
tificate and  seal  of  a  court  of  record  to  procure  pensions,  bounties,  and  back  pay  for 
soldiers  or  other  persons  entitled  thereto,  whenever  requested  by  the  apj)licant,  his 
agent,  or  attorney,  and  such  clerk  shall  be  entitled  to  the  sum  of  ten  cents  only  for 
such  services. 

In  probate  matters. — Sec.  37S3.  There  shall  be  such  compensation  paid  such 
clerk  for  his  services  in  probate  matters  out  of  the  fees  collected  by  him  for  probate 
business,  as  the  board  of  supervisors  may  allow. 

Compensation  limited. — Sec.  3784.  The  total  amount  of  compensation  of  such 
clerk  for  all  official  services,  shall  not  exceed  the  sum  of  two  thousand  dollars  in  any 
one  year,  except  that  in  each  county  having  two  county  seats,  such  compensation, 
including  the  amount  paid  to  deputies,  shall  not  exceed  three  thousand  dollars  in  any 
one  year,  and  if  the  fees  received  by  said  clerk  shall  amount  in  the  aggregate  to  more 
than  the  sum  above  stated  for  any  one  year,  the  excess  shall  be  paid  into  the  county 
treasury.  In  case  the  amount  of  fees  so  received  by  such  clerk  is  deemed  an  inade- 
quate compensation,  the  board  of  supervisors  may  allow  such  additional  compensa- 
tion as  they  deem  best  and  proper. 

Report  to  supervisors :  fees  collected. — Sec.  3785.  The  clerk  of  the  district 
court  as  such,  and  as  clerk  of  the  circuit  court,  shall  report  to  the  board  of  supervis- 
ors of  his  county  at  each  regular  session,  a  full  and  complete  statement  of  the  amount 
of  fees  received  by  him,  which  shall  be  verified  by  the  affidavit  of  such  clerk. 

Money  received  that  is  uncalled  for. — Sec.  3786,  The  clerk  of  the  district 
and  circuit  courts  shall  pay  into  the  county  treasury  all  money  received  for  witness 
fees  remaining  unclaimed  in  his  hands  for  six  months  after  the  receipt  of  the  same, 
and  at  the  time  of  so  doing  shall  deliver  to  the  treasurer  a  written  statement,  giving 
the  title  of  the  cause  and  style  of  the  court  in  which  the  same  was  pending,  with  the 
name  of  the  witnesses  and  the  amount  each  one  is  entitled  to  receive  and  the  treas- 
urer shall  keep  an  account  of  the  money  thus  received  separate  from  other  funds,  and 
shall  pay  the  same  to  the  persons  entitled  thereto  as  shown  by  such  statement,  taking 
proper  receipts  therefor. 

For  marriage  licenses  and  fees  in  probate  matters. — Sec.  3787.  There  shall 
be  paid  the  clerk  of  the  circuit  court  the  following  fees  ; 

For  issuing  marriage  licenses,  one  dollar  ; 

For  all  sers-ices  performed  in  the  settlement  of  the  estate  of  any  decedent,  except 
where  actions  are  brought  by  the  administrator  or  against  him,  or  as  may  be  other- 
wise provided  herein,  where  the  value  of  the  estate  does  not  exceed  three  thousand 
dollars,  three  dollars; 

Where  such  value  is  between  three  and  five  thou.=and  dollars,  five  dollars; 

Where  such  value  is  between  five  and  seven  thousand  dollars,  eight  dollars; 

Where  the  value  exceeds  eight  thousand  dollars,  ten  dollars ; 

And  in  addition  to  the  foregoing,  for  making  a  complete  record  in  cases  where  the 
same  is  required  by  law  or  directed  by  an  order  of  the  court,  for  every  one  hundred 
words,  ten  cents ; 

All  of  which  fees  shall  be  paid  into  the  county  treasury. 


FEES   AKD   COMPENSATION.  73 

Cannot  charge   fees   except    expressly   allowed.— 

Neither  the  clerk  nor  any  other  public  officer,  is  authorized  to 
charge  or  exact  fees  for  any  service  or  duty  performed  by  him 
unless  the  fee  therefor  is  expressly  provided  for,  and  authorized 
by  the  statute.  If  there  are  no  fees  expressly  allowed  for  the 
performance  of  certain  duties  required  of  them,  it  is  to  be  pre- 
sumed that  the  legislature  did  not  intend  to  allow  them  fees  there- 
for, but  that  the  fees  or  compensation  provided  for  them  was 
intended  as  a  complete  consideration  for  all  duties  devolving  upon 
them;  and  no  recovery  can  be  had  by  them  for  services  upon  a 
quantum  meruit.  These  principles  were  authoritatively  settled 
by  the  Supreme  Court  in  a  recent  case.  Sprout  v.  Eelly.^  June 
Term,  1873.     (Not  reported). 


74  THE   SHEEIFB'. 


CHAPTER  YIIL 


THE  SHERIFF. 

I.      THE    ANTIQUITY    AND    IMPORTANCE    OF    THE 

OFFICE. 

Antiquity  and  early  duties.— The  office  of  sheriff  is  one 

of  great  antiquity,  and  under  the  ancient  laws  of  England,  it  was 
an  exalted  and  highly  honorable  one.  He  was  keeper  of  the 
king's  pe^ce,  did  the  king's  business,  and  was  superior  in  rank  to 
any  nobleman  in  the  county. 

The  sheriff  not  only  possessed  great  executive  authority,  but 
also  extensive  judicial  functions,  both  civil  and  criminal. 

Its  dift-nity  and  importance.— The  dignity  and  importance 
of  the  office  was  frequently  maintained  by  great  displays  and 
extravagance,  as  is  disclosed  by  an  ancient  English  statute  which 
provided,  that  no  sheriff  should  keep  any  table  at  the  time  and 
place  of  holding  the  courts,  except  for  his  own  family,  or  have 
more  than  forty  men  in  livery;  but  it  was  further  provided,  that 
for  the  purpose  of  maintaining  the  proper  security,  respect,  and 
dignity  of  the  office,  or  in  the  language  of  the  statute,  "  for  the 
sake  of  safety  and  decency,"  he  should  not  have  less  than  twenty 
men  in  England  and  twelve  in  Wales. 

The  common  law  in  construction  of  statutes.— It  being 

an  ancient  office,  the  duties  and  liabilities  of  it  were  regulated  by 
the  common  law,  which  became  a  part  of  our  inheritance  from 
the  mother  country,  so  far  as  the  same  was  applicable  to  the 
changed  condition  and  circumstances;  and  although  the  duties  of 
the  office  are  here  largely  regulated  by  statute,  it  is  necessary  for 


BLECTION — QUALIFICATION — DEPUTIBS,    ETC.  75 

US  to  go  to  the  common  law  for  guidance  andlnstruction  in  solving 
the  problems  of  the  meaning  and  the  proper  construction  of  the 
statutes  relating  to  those  duties. 

The  office  continues  an  important  one. — As  under  the 

early  laws  of  England,  so  the  sheriff  in  this  country  continues  to 
be  the  executive  officer  of  the  county,  and  the  office  is  one  of 
honor  and  great  responsibility,  although  shorn  of  much  of  its  for- 
mer dignity  and  power. 

II.    HIS  ELECTION. 

By  reference  to  the  statutes  contained  in  the  first  chapter  of 
this  treatise,  it  will  be  seen  that  the  sheriff  is  elected  in  each  odd- 
numbered  year,  at  the  general  election,  for  the  term  of  two  years; 
that  the  term  of  office  commences  on  the  first  Monday  of  January 
next  after  the  election.  Code,  Sec.  573,  except  when  elected  to 
fill  a  vacancy,  and  that  the  term  of  office  of  an  officer  elected  to 
fill  a  vacancy  shall  commence  so  soon  as  he  has  qualified  there- 
for.    Code,  Sec.  576. 

III.     QUALIFICATION— DEPUTIES— VACANCIES— RE- 
MOVAL—SUSPENSION. 

General  statutes. — The  general  provisions  of  the  Code  in 
reference  to  qualification,  deputies,  vacancies  and  removal  or  sus- 
pension from  office,  may  be  found  in  Chapter  One. 

Forms  given  for  clerk,  etc.  The  directions  and  forms  to 
guide  the  clerk,  in  such  cases,  given  in  treating  of  that  officer, 
will  serve  the  sheriff  also  in  those  cases. 


76  sheriff's  duties. 


CHAPTER  IX. 


SHERIFF'S  DUTIES. 


Provisions  of  the  statutes.— The  Code  contains  the  fol- 
lowing general  provisions,  in  reference  to  his  duties: 

Duties. — Section  337.  The  sheriff  shall,  by  himself  or  his  deputies,  execute 
according  to  law,  and  return  all  writs  and  other  legal  process  issued  by  law- 
ful authority  and  to  him  directed  or  committed,  and  shall  perform  such  other  duties 
as  may  be  required  of  him  by  law. 

Bisobedience. — Sec.  338.  His  disobedience  of  the  command  of  any  such  pro- 
cess is  a  contempt  of  the  court  from  which  it  issued,  and  may  be  punished  by 
the  same  accordingly,  and  he  is  further  liable  to  the  action  of  any  person  injured 
thereby. 

Jail :  charge  of. — Sec.  339.  He  has  the  charge  and  custody  of  the  jail  or  other 
prison  of  his  county,  and  of  the  prisoners  in  the  same,  and  is  required  to  receive 
those  lawfully  committed,  and  to  keep  them  himself,  or  by  his  deputy  or  jailor,  until 
discharged  by  law. 

Conservators  of  the  peace. — Sec.  340.  The  sheriff  and  his  deputies  are  conserv- 
ators of  the  peace,  and  to  keep  the  same,  or  to  prevent  crime,  or  to  arrest  any  person 
liable  thereto,  or  to  execute  process  of  law,  may  call  any  person  to  their  aid,  and 
when  necessary,  the  sheriff  may  summon  the  power  of  the  county. 

Attend  courts. —  Sec.  341.  The  sheriff  shall  attend  upon  the  district  and  circuit 
courts  of  his  county,  and  while  either  remains  in  session  he  shall  be  allowed  the 
assistance  of  such  number  of  bailiffs  as  either  may  direct.  They  shall  be  appointed 
by  the  sheriff,  and  shall  be  regarded  as  deputy  sheriffs,  for  whose  acts  the  sheriff  shall 
be  responsible. 

Not  appear  as  attorney  or  counsel. — Sec.  342.  No  sheriff,  deputy  sheriff,  cor- 
oner, or  constable,  shall  appear  in  any  court  as  attorney  or  counsel  for  any  party,  nor 
make  any  writing  or  process  to  commence,  or  to  be  in  any  manner  used  in  the  same, 
and  such  writing  or  process  made  by  any  of  them  shall  be  rejected. 

Purchase  void. — Sec.  343.  No  sheriff,  deputy  sheriff,  coroner  or  constable,  shall 
become  the  purchaser,  either  directly  or  indirectly,  of  any  property  by  him  exposed 
to  sale  under  any  process  of  law,  and  every  such  purchase  is  absolutely  void. 

Execute  process  when  out  of  office. — Sec.  344.  Sheriffs  and  their  deputies  may 
execute  any  process  which  may  be  in  their  hands  at  the  expiration  of  their  ofifice,  and 
in  case  of  a  vacancy  occurring  in  the  office  of  sheriff  from  any  cause,  his  deputies 
shall  be  under  the  same  obligation  to  execute  legal  process  then  in  his  or  their  hands, 


sheeiff's  duties.  77 

and  to  return  the  same,  as  if  the  sheriff  had  continued  in  office,  and  he  and  they  will 
remain  liable  therefor  under  the  provisions  of  law  as  in  other  cases. 

Deliver  to  successor. — Sec.  345.  Where  a  sheriff  goes  out  of  office,  he  shall 
deliver  to  his  successor  all  books  and  papers  pertaining  to  the  office,  and  property 
attached  and  levied  upon,  except  as  provided  in  the  preceding  section,  and  all  prison- 
ers in  the  jail,  and  take  his  receipt  specifying  the  same,  and  such  receipt  shall  be  suffi- 
cient indemnity  to  the  person  taking  it. 

Successor  may  serve. — Sec.  346.  If  the  sheriff  die  or  go  out  of  office  before  the 
return  of  any  process  then  in  his  hands,  his  successor,  or  other  officer  authorized  to 
discharge  the  duties  of  the  office,  may  proceed  to  execute  and  return  the  same  in  the 
same  manner  as  the  out-going  sheriff  should  have  done,  but  nothing  in  this  section 
shall  be  construed  to  exempt  the  out-going  sheriff  and  his  deputies  from  the  duty 
imposed  on  them  by  section  three  hundred  and  thirty-seven  of  this  chapter,  to  exe- 
cute and  return  all  process  in  their  hands  at  the  time  the  vacancy  in  the  office  of 
sheriff  occurs. 

Sec.  347.  On  the  election  or  appointment  of  a  new  sheriff  all  new  process  shall 
be  directed  to  him. 

Sec.  348.  If  the  sheriff,  who  has  made  a  sale  of  real  estate  on  execution,  die,  or 
go  out  of  office  before  the  period  of  redemption  expires,  his  successor  shall  make 
the  necessary  deed  to  carry  out  such  sale. 


78  ORIGINAL   NOTICE. 


CHAPTER  X. 


ORIGINAL  NOTICE. 

I.    WHAT  IT  IS. 

The  most  common  process. — This  is  the  most  common 
kind  of  legal  process.  It  is  the  substitute  for  the  common  law 
summons,  and  the  process  provided  by  law  for  the  commence- 
ment of  an  action. 

II.    HOW  SIGNED  AND  SERVED. 

It  may  be  signed  by  the  party  or  by  his  attorney  and  served  by 
any  person  not  a  party  to  the  action. 

When  delivered  to  the  sheriif  for  service. — If  the 

notice  is  delivered  to  the  sheriif  for  service,  he  must  note  thereon 
the  date  when  received,  and  proceed  to  serve  the  same  in  his 
county  without  delay,  and  file  the  same  with  his  return -thereon 
in  the  office  of  the  clerk  of  the  court  in  which  the  suit  is  institu- 
ted, or  return  the  same  by  mail  or  otherwise,  to  the  party  from 
whom  he  received  it. 

Provisions  of  the  Code  relating  to  service.— The  provis- 
ions of  the  Code  in  reference  to  service  on  individuals,  and  the 
return  thereof,  are  as  follows: 

Notice :  how  served. — Section  2603.    The  notice  shall  be  served  as  follows  : 

1.  By  reading  the  notice  to  the  defendant,  or  offering  to  read  it  in  case  he  neg- 
lects or  refuses  to  hear  it  read,  and,  in  either  case,  by  delivering  him  personally  a  copy 
of  the  notice,  or  if  he  refuses  to  receive  it,  offering  to  deliver  it; 

2.  If  not  found  within  the  county  of  his  residence,  by  leaving  a  copy  of  the  notice 
at  his  usual  place  of  residence  with  some  member  of  the  family  over  fourteen  years 
of  age ; 


HOW   SIGNED   AND   SERVED.  79 

3.  By  taking  an  acknowledgment  of  the  service  indorsed  on  the  notice,  dated  and 
signed  by  the  defendant. 

Betam  when  personally  served. — Sec.  2604.  If  served  personally,  the  return 
must  state  the  time  and  manner  and  place  of  making  the  service,  and  that  a  copy  was 
delivered  to  defendant,  or  offered  to  be  delivered.  If  made  by  leaving  a  copy  with 
the  family,  it  must  state  at  whose  house  the  same  was  left,  and  that  it  was  the  usual 
place  of  residence  of  the  defendant,  and  the  township,  town,  or  city  in  which  the 
house  was  situated,  the  name  of  the  person  with  whom  the  same  was  left,  or  a  suffi- 
cient reason  for  omitting  to  do  so,  and  that  such  person  was  over  fourteen  years  of 
age,  and  was  a  member  of  the  family. 

Sheriff  to  note  when  received. — Sec.  2605.  If  the  notice  is  placed  in  the  hands 
of  a  sheriff,  he  must  thereon  note  the  date  when  received,  and  proceed  to  serve  the 
same  without  delay  in  his  county,  and  must  file  the  same  with  his  return  thereon  in  the 
office  of  the  clerk,  or  return  the  same  by  mail  or  otherwise  to  the  party  from  whom  he 
received  it. 

Penalty  for  defective  return :  amendment  of. — Sec.  2606.  If  a  notice  be  not 
duly  filed  or  returned  to  the  person  from  whom  it  was  received  by  the  sheriff,  or  if 
the  return  thereon  is  defective,  the  officer  making  the  same  may  be  fined  by  the 
court,  not  exceeding  ten  dollars,  and  shall  also  be  liable  to  the  action  of  any  person 
aggrieved  thereby.  But  the  court  may  permit  an  amendment  according  to  the 
truth  of  the  case. 

Noting  the  time. — The  noting  thereon  the  time  when  received 
by  him  is  important,  in  cases  where  the  statute  of  limitations  may 
be  set  up  as  a  defense  to  a  cause  of  action.  That  statute  pro- 
vides, that  the  delivery  of  a  notice  to  the  sheriif  of  the  proper 
county,  with  intent  that  it  be  immediately  served,  which  intent 
shall  be  presumed  unless  the  contrary  appears,  or  the  actual  ser- 
vice by  another  person,  is  a  commencement  of  an  action.  Code, 
Sec.  2532. 

How  served. — It  must  be  served  on  the  defendant  and  not 
on  an  agent,  13  Iowa,  546,  by  reading  the  same  to  the  defendant, 
unless  he  refuses  to  hear  it  read,  and  by  delivering  to  him  a  copy 
of  the  same,  unless  he  refuses  to  receive  it. 

Construction  of  the  statute. — It  was  held  under  a  former 
but  similar  statute,  requiring  a  reading  of  the  notice  to  the  defend- 
ant and  the  giving  of  him  a  copy  if  demanded;  that  a  return  of 
service,  "  by  reading  the  same  in  the  presence  and  hearing  of  the 
defendant,"  was  defective,  and  a  judgment  rendered  on  such  a 
return  of  service  was  reversed  by  the  Supreme  Court.  But  it  was 
also  held,  that  a  service  by  reading  in  the  presence  and  hearing 
of  the  defendant,  was  made  good  by  a  demand  of  a  copy  of  the 


80  ORIGINAL   NOTICE. 

notice  which  was  given  the  defendant.  11  Iowa,  210;  10  Iowa, 
553;  4  G.  Greene,  345;  6  Iowa,  78. 

And  in  a  subsequent  case,  where  the  return  showed  the  notice 
was,  "  personally  served  by  reading  in  the  hearing  of  the  defend- 
ant, and  leaving  a  true  copy  with  him,"  it  was  held  to  be  a  good 
service.     27  Iowa,  270. 

Where  the  defendant  is  not  found.— If  the  defendant 

cannot  be  found  within  the  county  of  his  residence,  the  service 
should  be  made  by  leaving  a  copy  thereof  at  his  usual  place  of 
residence  with  some  member  of  the  family  over  fourteen  years 
of  age. 

The  officer  shall  use  dili;^ence. — Diligence  should  be  used 

by  the  officer  to  make  personal  service.  He  should  make  search 
and  inquiry  for  him,  and  merely  calling  at  his  residence  or  place 
of  business  and  finding  him  temporarily  absent,  would  hardly  jus- 
tify a  return  that  the  defendant  could  not  be  found  in  the  county, 
and  a  service  by  copy. 

When  to  serve  by  copy. — When  in  the  use  of  reasonable 
diligence  the  officer  is  unable  to  find  the  defendant  in  the  county, 
a  service  by  copy  is  required. 

Where  and  with  whom  to  leave  the  copy.— The  copy 

should  be  left  at  the  usual  and  not  the  temporary  place  of  resi- 
dence of  the  defendant,  not  at  defendant's  shop  or  store.  It 
should  be  left  with  some  member  of  the  family  over  fourteen 
years  of  age.  If  left  with  the  wife  of  defendant,  the  return 
should  show  that  she  was  over  fourteen  years  of  age,  and  not 
leave  it  to  be  presumed. 

If  the  return  states,  that  it  was  left  at  the  usual  place  of  resi- 
dence of  the  defendant,  with  his  wife,  a  member  of  his  family 
over  fourteen  years  of  age,  it  would  be  sufficient  if  the  name  of 
the  wife  should  not  be  stated.     7  Iowa  56. 

Meaning  of  the  words  "the  family."— The  words,  "the 

family,"  in  the  statute  mean  the  family  of  which  the  defend- 
ant is  a  member.  He  is  not  required  to  be  the  head  of  a  family. 
And  a  return  that  the  officer,  "  left  a  copy  with  Mrs.  Gay,  at 
defendant's  boarding  house,  being  the  residence  of  E.  E.  Gay, 
the  above  named   Mrs.   Gay  being  over  fourteen  years  of  age, 


WHAT  THE  RETURN  SHOULD  SHOW.  81 

and  being  a  member  of  the  family  of  E.  E.  Gay,"  was  held, 
"  defective  in  not  showing  the  house  of  E.  E.  Gay,  was  the  usual 
place  of  residence  of  the  defendant,  and  that  Mrs.  Gay,  was  a 
member  of  defendant's  family." 

The  Court  in  deciding  the  case,  say:  "We  do  not  intend  to 
determine  here,  that  the  defendant  must  be  the  head  of  a  family, 
with  a  member  of  which  a  copy  is  left;  but  only  that  they  must 
be  of  the  same  family."     2  Iowa,  158. 

A  service  on  a  widowed  mother  of  the  defendant  residing  with 
him  would  be  good.     17  Mo.,  78. 

III.  WHAT  THE  RETURN  SHOULD  SHOW. 

The  return  of  service  may  be  written  on  the  notice,  and  it 
should  show  the  mode  of  service.  It  is  not  sufficient  to  state  that 
it  was  duly  served.     6  Iowa,  78. 

RETURN  OF  PERSONAL  SERVICE. 
No.  57. 


State  of  Iowa, 
County 


,1 


ss. 


I,  A  B,  sheriff  of  said  county,  do  hereby  certify  and  return 
that  I  received  the  within,  (or  annexed),  notice  for  service  on  the 
....  day  of  ,  . . . ,  18 . . ,  and  that  I  served  the  same  personally  on 
C  D,  the  defendant  therein  named,  on  the  ....  day  of  . .  .  . ,  18 . . , 
at  ....  in  said  county,  by  reading  the  same  to  him,  (or  by  ofiering 
to  read  the  same  to  him,  he  neglecting  and  refusing  to  hear  the 
same  read),  and  by  delivering  to  him  personally  a  copy  of  said 
notice,  (or  by  offering  to  deliver  to  him  personally  a  copy  of  said 
notice,  he  refusing  to  receive  the  same). 
Dated  this  ....  day  of  ... .  18 . . . 

Fees:  A....  ^.....Sheriff. 

Service  $ . . . . 
Mileage  .... 
Copy         

Where  service  is  made  on  several  defendants. — If  there 

are  several  defendants  personally  served  at  the  same  time  and 
place,  one  return  might  be  made  for  all,  by  stating  the  same  was 
personally  served  on  each  of  the  defendants  named  in  the  notice, 
by  reading  the  same  to  each  of  them,  and  by  delivering  to  each 
of  them  personally  a  copy  of  the  same. 
6 


H'Z  ORIGINAL   NOTICE. 

If  they  are   served  at  different  times  and  places,  a  return  of 
service  in  each  case  would  be  necessary. 

ADMISSION  OF  SEEVICE. 
No,  58. 

I  hereby  admit  due  service  of  the  within  notice  at  ....  in  .... 

county,  State  of 

Dated  this  ....  day  of  . . . . ,  18 . . . 

C D ,  Defendant. 

Where  made,  and  what  is  admission.— The  admission  of 

service  should  be  in  writing,  and  indorsed  on  the  notice.  A 
waiver  of  service  of  notice  indorsed  on  the  back  of  it,  dated  and 
signed  by  the  defendant,  in  another  State,  is  equivalent  to  an 
acknowledgment,  and  will  confer  jurisdiction,  and  it  is  not  nec- 
essary that  proof  of  the  signature  should  be  made.  13  Iowa,  300, 
Service  on  a  firm. — A  notice  in  which  a  co-partnership  is 
made  defendant,  should  be  served  on  one  of  the  partners,  and  the 
return  need  not  show  that  it  was  served  on  the  member  engaged 
in  the  general  management  of  the  business.  8  Iowa,  474,  51G;  10 
Iowa,  445.  A  service  on  one  member  of  the  firm,  in  an  action  against 
the  firm,  on  a  note  signed  in  the  firm  name,  gives  the  court  jurisdic- 
tion over  all  the  members  of  the  firm;  and  if  service  is  made  on 
one,  after  a. dissolution  of  the  firm,  it  would  warrant  a  judgment 
against  the  firm  to  be  satisfied  out  of  the  firm  property,  or  the 
separate  property  of  the  party  served  with  notice.  18  Iowa,  19; 
10  Iowa,  70.  One  defendant  cannot  have  a  judgment  reversed 
for  insufficiency  of  service  upon  a  co-defendant,  who  does  not 
complain.     13  Iowa,  304. 

Service  where  a  county  is  defendant— If  a  county  is 

defendant,  service  should  be  made  on  the  chairman  of  the  board 
of  supervisors,  or  on  the  county  auditor.     Code,  Sec.  2610. 

RETURN  OF  SERTICE  OX  A  FIRM. 
3Sro.  59. 

State  of   Iowa,      ) 

County,      )  ' 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that 

I  received  the  within  original  notice  for  service  on  the day  of 

. .  .  .18.  .  .,  and   that  I    served  the   same  on  the  defendant,  C  D 
&  Co.,  therein  named,  at . . . . ,  in  said  county,  by  reading  the  same 


SERVICE   ON   CORPORATIONS.  83 

to  C  D,  a  member  of  said  firm  of  C  D  &  Co.,  (or  by  offering  to 
read  the  same  to  him,  he  neglecting  and  refusing  to  hear  the 
same  read),  and  by  delivering  to  him  personally,  a  copy  of  said 
notice,  (or  by  offering  to  deliver  to  him  personally,  a  copy  of  said 
notice,  he  refusing  to  receive  the  same.) 

Dated.... 187....  A....   B....    SheHf. 

Fees: 

Service,  |. . . . 

Mileage,    .... 

Copy,         

EFTURN  OF  SFEVICE  BY  COPY. 
No.  60. 

State  of  Iowa 


County.  [  ' 


I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,   that 
I  received  the  within  original  notice  for  service  on  the ....  day  of 

18...,   and  that    I  served  the  same  on  the  defendant,  C  D, 

therein  named,  by  leaving  a  copy  thereof  at  the  dwelling  house 
of  the  defendant,  (or  the  residence  of  E  F),  situated  in  the  city 
(or  township),  of . .  . . ,  in  said  county,  that  being  the  usual  place 
of  residence  of  said  defendant,  with  E  D,  wife  of  the  defendant, 
(or  with  Mrs.  G  F,  wife  of  the  said  E  F),  she  being  over  four- 
teen years  of  age  and  a  member  of  the  family;  the  said  defend- 
ant not  being  found  within  said  county. 
\I)ated  a)id  signed  as  in  No.  59.] 

EETTJEN  WHERE  A  COUNTY  IS  DEFENDANT. 
No.  61. 

State  op  Iowa,       ) 

County.    \  ^^' 

I,  A  B,  sheriff  of  said  county,  do  hereby  certify  and  return, 
that  I. received  the  within  original  notice  for  service  on  the. .  . . 
day  of. . . .  18 .  . .,  and  that  I  served  the  same  on  the  defendant 
therein  named  by  reading  the  same  to  C  D,  chairman  of  the 
board   of  supervisors  of    said  county,   (or  E    F,  auditor  of  said 

county),  at . . . . ,  in  .said  county,  on  the ....  day   . . .  of 18 . . , 

and  by  then  and  there  delivering  to  him  personally  a  copy  of  said 
notice.      Dated ....  18 ... . 

A....    B....,  Sheriff. 

IV.    SERVICE  ON  CORPORATIONS. 

The  Code  provides  for  the  service  of  the  original  notice  on  pri- 
vate and  public  corporations,  as  follows: 

How  served  on  railway  corporations. — Skction  2611.  If  the  action  isagainstany 
corporiuion,  or  person  owning  or  operating  any  railway,  telegraph  line,  canal,  stages, 
coaches,  or  cars,  or  any  express  company,  service  may  be  made  upon  any  general 


84  ORIGINAL   NOTICE. 

agent  of  such  corporation,  or  person,  wherever  found,  or  upon  any  station,  ticket,  or 
other  agent  of  such  corporation,  or  person  transacting  the  business  thereof  in  the 
county  where  the  suit  is  brought;  if  there  is  no  such  agent  in  said  county,  then 
service  may  be  had  upon  an  agent  thereof  transacting  said  business  in  any  other 
county. 

On  municipal. — Sec.  2CA2.  When  the  action  is  against  a  municipal  corporation, 
sen'ice  may  be  made  on  the  mayor  or  cleric,  and  if  agninst  .any  other  corporation,  or 
any  trustee  or  officer  thereof,  or  on  any  agent  employed  in  general  management  of 
its  business,  or  on  any  of  the  last  known  or  acting  officers  of  said  corporation,  and  if 
no  person  can  be  found  on  whom  ser\ice  can  be  made  as  pro\'ided  in  this  and  the 
preceding  section,  service  may  be  made  by  publication  as  provided  in  other  cases. 

Agents:  service  on. — Sec.  2613.  When  a  corporation,  company,  or  individual, 
has,  for  the  transaction  of  any  business,  an  office  or  agency  in  any  county  other  than 
that  in  which  the  principal  resides,  ser\'ice  may  be  made  on  any  agent  or  clerk 
employed  in  such  office  or  agency,  in  all  actions  growing  out  of  or  connected  with 
the  business  of  that  office  or  agency. 

Service  on  a  R.  R.  corporation.— In  an  action  against  a 
railroad  corporation,  service  cannot  properly  be  made  on  a  bag- 
gage-master or  track-master,  in  the  service  of  such  corporation. 
He  would  not  be  such  an  agent  as  the  law  contemplates;  and  a 
return  of  service  upon  an  agent  merely,  would  not  be  suflBcient; 
but  the  return  of  service  should  show  a  service  on  a  general 
agent  or  the  particular  agents  named  in  the  statute.  8  How. 
Prac.  R.,  308.     13  Iowa,  546;  8  Iowa,  260. 

EETUEN  OF  SEEYICE  ON  E.  E.  COEPOEATIOX. 
No.  62. 

State  or  Ioava,      |  ^^ 
County,      ] 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that 

I  received  the  within  original  notice  for  service  on  the day  of 

18...,   and    that  on   the day     of  . . .  18.  . .,   at ,    in 

said  county,  I  served  the  same  on  the  defendant  therein  named, 
by  reading  the  same  to  C  D,  the  general  agent  of  said  defendant, 
(or  the  station  or  ticket  agent  of  said  defendant,  or  the  person 
transacting  the  business  of  the  defendant  in  said  county,  or  the 
agent  of  said  defendant  transacting  business  in  another  county 
and  having  no  agent  in  said  county  where  suit  is  brought),  and 
by  delivering  to  him  personally  a  copy  of  said  notice. 

Dated 18...  A B ,  Sheriff. 

EETUEN  OF  SEEVICE  ON  MUNICIPAL  COEPOEATION. 
No.  63- 

State  of  Iowa,      ) 

County,      [ 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that 


SEKVICE    ON   MINORS,    PRISONERS,   ETC.  85 

I  received  the  within  original  notice  for  service  on  the  . .  .day  of 
....  18 ... ,  and  served  the  same  on  the  defendant  therein  named, 
at. . . . ,  in  said  county,  on  the ....  day  of. . . .  IS . . .,  by  then  and 
there  reading  the  same  to  C  D,  mayor  of  said  city,  the  defendant 
therein  named,  (or  on  the  clerk  of  said  city  or  town,  defendant 
tJierein  named),  and  by  then  and  there  delivering  to  him  person- 
ally, a  copy  of  said  notice. 

Dated....  18...  K. ...   B. ....  Sheriff. 

V.    SERVICE    ON  MINORS,    PRISONERS  AND   INSANE 

PERSONS. 

Tiie  following  provisions  of  the  Code,  direct  the  mode  of  ser- 
vice on  minors,  prisoners  and  insane  persons: 

Minors :  how  served. — Section  2614.  When  the  defendant  is  a  minor  under 
the  age  of  fourteen  years,  the  service  must  be  made  on  him,  and  also  on  his  father,  or 
mother,  or  guardian,  and  if  there  be  none  of  these  within  the  state,  then  on  the 
person  within  this  state  having  the  care  and  control  of  such  minor,  or  with  whom  he 
shall  reside,  or  in  whose  service  he  shall  be  employed.  When  the  minor  is  over  four- 
teen years  of  age,  service  on  him  shall  be  sufficient. 

Insane. — Sec.  2615.  When  a  defendant  has  been  judicially  declared  to  be  of 
unsound  mind,  or  who  is  confined  in  any  state  lunatic  asylum,  service  may  be  made 
upon  him  and  upon  his  guardian,  and  if  he  have  no  guardian,  then  upon  his  wife  or 
the  person  having  the  care  of  him,  or  with  whom  he  lives,  or  the  keeper  of  the  asylum 
in  which  he  may  be  confined. 

When  confined  in  state  lunatic  asylum. — Sec.  2616.  When  it  becomes  nec- 
essary to  serve  personally  with  a  notice  or  process  of  any  kind,  a  person  who  is  con- 
fined in  any  state  lunatic  asylum,  the  superintendent  thereof  shall  acknowledge 
service  of  the  same  for  such  person,  whenever,  in  the  opinion  of  such  superintend- 
ent, personal  service  would  injuriously  affect  such  person,  which  fact  shall  be  stated 
in  the  acknowledgment  of  service.  A  service  thus  made  shall  be  deemed  a  personal 
one  on  the  defendant. 

Prisoner  in  penitentiary. — Sec.  2617.  When  the  defendant  is  a  prisoner  in  the 
penitentiary,  a  copy  of  the  petition  must  be  delivered  to  the  prisoner  at  the  time  the 
notice  is  served,  and  a  copy  of  the  notice  must  be  delivered  to  the  husband  or  wife 
of  the  defendant,  if  any  such  there  be  within  this  state. 

Infants:  decision  relating  to. — The  court  has  no  jurisdic- 
tion to  make  any  order  prejudicing  an  infant,  not  even  to  appoint 
a  guardian  ad  litem,  until  there  has  been  a  complete  legal  ser- 
vice of  process  upon  him;  and  any  order  therefor  made  in  an 
action  against  an  infant,  who  has  not  been  legally  served  with 
notice,  will  be  absolutely  null  and  void;  and  the  return  must  show 
that  neither  father  nor  mother  are  living  within  the  State,  to 
authorize  a  service  on  the  person  having  the  care  and  control 
of  the  minor.     14  Iowa,  435. 


86  ORIGINAL   NOTICE. 

EETURN  OF  SERVICE  ON  A  5IIX0B. 

N"o.  64:. 

State  of  Towa,      ) 
County,     j 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return 
that  I  received  the  within  original  notice  for  service  on  the  .... 
day  of  . . . .,  18.  .,and  served  the  same  on  C  D,  defendant  therein 
named  on  the  ....  day  of  . . . . ,  18 . . ,  at  ....  in  said  county,  by 
reading  the  same  to  him,  and  also  by  then  and  there  reading-  the 
same  to  E  F,  the  father  (or  mother  or  guardian  of  the  defendant), 
of  the  said  defendant,  said  defendant  l^eing  under  the  age  of 
fourteen  years,  and  by  then  and  there  delivering  to  each  of  them 
personally  a  copy  of  said  notice. 

Dated ,  18...  A U.,,., Sheriff. 


State  of  Iowa,       ^ 


RETURN   WHERE  DEFENDANT  IS  OF  UNSOUND  MIND  OR  INSANE. 
No.  65. 

County.  ) 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return, 
that  I  received  the  within  original  notice  for  service  on  the  . . . 
day  of  .... ,  18 . . ,  and  that  on  the  ....  day  of  . . . . ,  18  . . ,  I  served 
the  same  personally  on  C  D,  the  defendant  therein  named,  at 
. . . . ,  in  said  county,  by  then  and  there  reading  the  same  to  him, 
and  by  delivering  to  him  personally  a  copy  of  the  same;  and  that 
on  the  ....  day  of  . .  .  .,  18.  .,  I  served  the  same  personally  on 
E  D,  the  wife  of  the  said  C  D,  (or  the  keeper  of  the  asylum 
where  the  defendant  is  confined),  at  .  . . . ,  in  ...  county,  by  then 
and  there  reading  the  same  to  her  and  delivering  to  her  personally 
a  copy  of  the  same,  said  defendant  having  been  judicially  declared 
to  be  of  unsound  mind,  and  having  no  guardian,  (or,  being  con- 
fined in  the   State  lunatic  asylum  at  . . . . ,  in  said  State.) 

Dated ,  18... 

A....  B....,  Sheriff. 

Where  the  superintendent  of  can  casyluni  acknowl- 
edges service. — Where  the  superintendent  of  a  State  lunatic 
asylum  acknowledges  service  under  the  provisions  of  section 
2G15,  it  would  still  be  necessary,  I  apprehend,  to  serve  the  same 
on  the  guardian,  or  wife  of  the  defendant,  as  provided  by  section 
2614. 

RETURN,  WHERE  SERVICE  CANNOT  BE  MADE. 
No.  66. 

State  of  Iowa,      ) 

County.  [ 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that 


EFFECT   OF   THE   RETURN.  87 

I  received  the  within  original  notice  for  service  on  the  .  .  day  of 
. . . . ,  18 . . ,  and  that  the  defendant  therein  named  cannot  be 
found  in  said  county,  and  that  he  has  no  dwelling  house  or  usual 
place  of  residence  in  said  county. 

Dated  this day  of ,  18 . . 

A....  B....,  Sheriff. 

Service  on  Sunday. — The  general  rule  of  law  is,  that  civil 
process  cannot  be  served  on  Sunday,  but  when  the  plaintiff,  his 
agent,  or  attorney,  makes  oath  on  the  original  notice,  that  per- 
sonal service  will  not  be  possible,  unless  then  made,  the  officer  is 
required  to  serve  the  same  on  Sunday,  as  on  a  secular  day. 
Code,  Sec.  2607. 

The  forms  of  return  of  service  above  given  can  be  varied  to 
meet  the  case  where  the  name  cf  the  party  with  whom  the  copy 
is  left  is  not  known,  and  cannot  be  ascertained,  and  also  where 
service  is  by  deputy;  in  which  case  the  return  should  be  the  same, 
with  the  signature  of  the  sheriff,  but  to  which  should  be  added, 
«  by  C  D,  his  deputy." 

V.  THE  EFFECT  OF  THE  RETURN. 

Provisions  of  the  statutes . — The  Code  provides,  that  if 
service  is  made  within  the  State,  the  truth  is  proven  by  the  signa- 
ture of  the  sheriff  or  his  deputy,  and  the  court  shall  take  judi- 
cial notice  thereof. 

Return  of  "  not  found." — And  where  the  sheriff  returns  "  not 
found,"  it  raises  sufficient  presumption  that  the  defendant  was 
not  found  within  his  bailiwick,  to  sustain  a  service  made  by  leav- 
ing a  copy,  and  where  the  notice  was  directed  to  Luther  Burt, 
and  served  on  L.  Burt,  it  was  held  that  the  court  might  infer 
that  it  was  served  on  the  right  person.     12  Iowa,  428;  7  Iowa,  56. 

In  case  of  admission. — If  the  defendant  admits  service  in 
writing,  this  is  good,  even  though  made  in  another  State,  and  the 
signature  need  not  be  proved.     13  Iowa,  300. 

The  return  as  evidence. — The  matters  set  forth  in  the 

return  of  the  sheriff,  are  presumed  to  be  true;  such  as,  that  the 
defendant  cannot   be  found,  or  has  no  dwelling   house,  or  usual 


88  ORIGINAL    NOTICE. 

place  of  residence  in  the  county,  or  that  the  defendant  is  a  minor, 
or  has  been  judicially  declared  of  unsound  mind,  or  insane,  or  in 
the  insane  asj^lum  of  the  State,  or  penitentiary  of  the  State,  or  that 
the  person  on  whom  service  is  made,  is  a  guardian,  or  wife,  or 
father  or  mother   of  the  defendant. 

The  return  is  competent  evidence  of  these  facts,  and  it  is 
questioned  if  they  can  be  contradicted  by  parol  evidence.  11 
Iowa,  387;  19  Iowa,  248;  3  G.  Greene,  387;  4  G.  Greene,  468. 


sheriff's  duty  kelating  to  sekvicb.  89 


CHAPTER  XI. 


PROCESS  OF  ATTACHMENT. 


I.    THE   SHERIFF'S    DUTY    RELATING    TO   SERVICE. 

The  duty  of  the  sheriiF  on  receiving  an  attachment  for  service 
is  pointed  out  by  the  Code,  as  follows: 

Property  attached:  oflBoer's  duty. — Section  2964.  The  sheriif  shall  in  all  cases 
attach  the  amount  of  property  directed  if  sufficient,  not  exempt  from  execution, 
found  in  his  county,  giving  that  in  which  the  defendant  has  a  legal  and  unquestion- 
able title  a  preference  over  that  in  which  his  title  is  doubtful  or  only  equitable. 

Sec.  2965.  Where  there  are  several  attachments  against  the  same  defendant,  they 
shall  be  executed  in  the  order  in  which  they  were  received  by  the  sheriff. 

May  follow  to  another  county:  when. — Sec.  2966.  If,  after  an  attachment 
has  been  placed  in  the  hands  of  the  sheriff,  any  property  of  the  defendant  is  moved 
from  the  county,  the  sheriff  may  pursue  and  attach  the  same  in  an  adjoining  county 
within  twenty-four  hours  after  removal. 

What  may  he  attached,  and  how  done. — Sec.  2967.  Stock  or  interest  owned  by 
the  defendant  in  any  company,  and  also  debts  due  him,  or  property  of  his  held  by 
third  persons,  may  be  attached,  and  the  mode  of  attachment  must  be  as  follows: 

1.  By  giving  the  defendant  in  the  action,  if  found  within  the  county,  and  also  the 
person  occupying  or  in  possession  of  the  property,  if  it  be  in  the  hands  of  a  third  per- 
son, notice  of  attachment; 

2.  If  the  property  is  capable  of  manual  delivery,  the  sheriff  must  take  it  into  cus- 
tody if  it  can  be  found  ; 

3.  Stock  in  a  company  is  attached  by  notifying  the  president  or  other  head  of  the 
company,  or  the  secretary,  cashier,  or  other  managing  agent  thereof,  of  the  fact  that 
the  stock  has  been  so  attached , 

4.  Debts  due  the  defendant,  or  property  of  his  held  by  third  persons,  and 
which  cannot  be  found,  or  the  title  to  which  is  doubtful,  or  attached  by  garnishment 
thereof. 

Defendant  examined  on  oath  before  judge.— Sec.  2968.  Whenever  it  appears 
by  the  affidavit  of  the  plaintiff,  or  by  the  return  of  the  attachment,  that  no  property 
is  known  to  the  plaintiff  or  the  officer  on  which  the  attachment  can  be  executed,  or 
not  enough  to  satisfy  the  plaintiff's  claim,  and,  it  being  shown  to  the  judge  of  any 
court  by  affidavit,  that  the  defendant  has  property  within  the  state  not  exempt,  the 
defendant  may  be   required  by   such  judge   to   attend  before   him,  or   before  the 


90  PROCESS   OP   ATTACHMENT. 

court  in  which  the  action  is  pending,  and  give  information  on  oath  respecting  his 
property. 

When  property  bound. — Sec.  2969.  Property  attached  otherwise  than  by  gar- 
nishment, is  bound  thereby  from  the  time  of  the  service  of  the  attachment  only. 

Receiver  appointed  :  when  and  how. — Sec.  2970.  The  court  before  whom  the 
action  is  pending,  or  the  judge  thereof  in  vacation,  may,  at  any  time,  appoint  a 
receiver  to  take  possession  of  property  attached  under  the  provisions  of  this  chapter, 
and  to  collect,  manage,  and  control  the  same,  and  pay  over  the  proceeds  according 
to  the  nature  of  the  property  and  the  exigency  of  the  case. 

Money  attached  to  be  paid  clerk.— Sec,  2971.  All  money  attached  by  the 
sheriff,  or  coming  into  his  hands  by  virtue  of  the  attachment,  shall  forthwith  be  paid 
over  to  the  clerk  to  be  by  him  retained  till  the  further  action  of  the  court. 

Other  property. — Sec.  2972.  The  sheriff  shall  make  such  disposition  of  other 
attached  property  as  may  be  directed  by  the  court  or  judge,  and  where  there  is  no 
direction  upon  the  subject  he  shall  safely  keep  the  property  subject  to  the  order  of  the 
court. 

Partnership  property. — Sec.  2973.  In  executing  an  attachment  against  a  person 
who  owns  property  jointly  or  in  common  with  another,  or  who  is  a  member  of  a 
partnership,  the  officer  may  take  possession  of  such  property  so  owned  jointly,  iu 
common,  or  in  partnership,  sufficiently  to  enable  him  to  inventory  and  appraise  the 
same,  and  for  that  purpose  shall  call  to  his  assistance  three  disinterested  persons  ;  which 
inventory  and  appraisement  shall  be  returned  by  the  officer  with  the  attachment,  and 
such  return  shall  state  who  claims  to  own  such  property. 

Specific  attachments. — The  Code  provides  for  specific 
attachments,  to  enforce  a  mortgage  of  or  a  lien  upon  personal 
property,  or  for  the  recovery,  sale  or  partition  of  such  property, 
where  it  appears  that  the  plaintiff  has  a  just  claim,  and  that  the 
property  is  about  to  be  sold,  concealed,  or  removed  from  the 
State,  and  by  a  vendor  of  property  fraudulently  purchased,  to 
secure  the  same.     Code,  Sees.  3000,  3001. 

The  Code  further  provides  in  such  cases,  that  the  attachment 
shall  have  indorsed  upon  it  the  direction  of  the  judge  as  to  the 
disposition  to  be  made  of  the  attached  property,  and  that  it  shall 
be  directed,  executed  and  returned  as  other  attachments.  Code, 
Sees.  3003,  3004. 

Indebtedness  due  the  State.— The  Code  provides   for 

attachments  in  case  a  person  is  indebted  to  the  State,  and  the 
sheriff's  duty  in  such  a  case,  as  follows: 

No  bonds  can  be  required. — Section  3007.  The  attachment  so  issued  shall  be  lev- 
ied as  in  other  cases  of  attachment,  and  no  bond  shall  be  required  of  the  plaintiff  in 
such  cases,  and  the  sheriff  shall  not  be  authorized  to  require  any  indemnifying  bond 
before  levying  the  same. 

Property  released  :  how. — Sec  3008.  Any  property  taken  on  attachment  under 
the  provisions  of  the  two  preceding  sections,  shall  be  subject  to  be  released  upon  the 


RETURN — JUDGMENT — INTERVENTION,   ETC.  91 

execution  of  a  delivery  bond,  with  sufficient  security  as  provided  by  law  in  other 
cases. 

Damages  paid  by  sheriff:  a  debt  against  the  State.— Sec.  3009.  In  case 
any  sheriff  shall  be  held  liable  to  pay  any  damages  by  reason  of  the  wrongful  e.vecu- 
tion  of  any  writ  of  attachment  issued  under  the  three  preceding  sections,  and  if  a 
judgment  be  rendered  therefor  by  any  court  of  competent  jurisdiction,  the  amount  of 
such  judgment  when  paid  by  such  sheriff  shall  become  a  claim  ag.iinst  the  state  of 
Iowa  in  favor  of  such  sheriff,  and  a  warrant  therefor  shall  be  drawn  by  the  auditor 
upon  proper  proof. 

II.  PROVISIONS  OF  THE  CODE  ON  RETURN. 

The  following  provisions  relate  to  the  return,  and  other  pro- 
ceedings: 

SheriflTs  return ;  contents. — Section  .5010.  The  sheriff  shall  return  upon 
every  attachment  what  he  has  done  under  it.  The  return  must  show  the  property 
attached,  the  time  it  was  attached,  and  the  disposition  made  of  it,  by  a  full  and  par- 
ticular inventory  ;  also  the  appraisement  above  contemplated,  when  such  has  been 
made.  When  garnishees  are  summoned,  their  names,  and  the  time  each  was  sum- 
moned, must  be  stated.  And  where  real  property  is  attached,  the  sheriff  shall 
describe  it  with  certainty  to  identify  it,  and  where  he  can  do  so,  by  reference  to  the 
book  and  page  where  the  deed  under  which  the  defendant  holds  is  recorded.  He 
shall  return  with  the  writ  all  bonds  taken  under  it.  Such  return  must  be  made  imme- 
diately after  he  shall  have  attached  sufficient  property,  or  all  that  he  can  find ;  or,  at 
latest,  on  the  first  day  of  the  first  term  on  which  the  defendant  is  notified  to  appear. 

III.      JUDGMENT— APPLICATION     OF      PROPERTY- 
INTERVENTION,    ETC. 

The  Code  provides: — 

Judgment:  how  satisfied. — Section  3011.  If  judgment  is  rendered  for  the 
plaintiff  in  any  case  in  which  an  attachment  has  been  issued,  the  court  shall  apply  in 
satisfaction  thereof,  the  money  arising  from  the  sales  of  perishable  property,  and  if 
the  same  is  not  sufficient  to  satisfy  the  plaintiff's  claim,  the  court  shall  order  a  sale  by 
the  sheriff  of  any  other  attached  property  which  may  be  under  his  control. 

Court  may  control  property. — Sec.  3012.  The  court  may,  from  time  to  time, 
make  and  enforce  proper  orders  respecting  the  property,  sales,  and  the  application  of 
the  moneys  collected. 

Expenses  for  keeping. — Sec.  3013.  The  sheriff  shall  be  allowed  by  the  court  the 
necessary  expenses  of  keepmg  the  attached  property,  to  be  paid  by  the  plaintiff 
and  ta.xed  in  the  costs. 

Surplus. — Sec.  3014.  Any  surplus  of  the  attached  property  and  its  proceeds 
shall  be  returned  to  the  defendant. 

Discharge  of  property. — Sec.  3015.  If  judgment  is  rendered  in  the  action  for 
the  defendant,  the  attaciiment  shall  be  discharged,  and  the  property  attached,  or  its 
proceeds,  shall  be  returned  to  him. 

Intervention:  how  made  and  tried. — Sec.  301G.  Any  person  other  than  the 
defendant  may,  before  the  sale  of  any  attached  property,  or  before   the  payment  to 


92  PEOCESS   OF   ATTACHMENT. 

the  plaintiff  of  the  proceeds  thereof  or  any  attached  debt,  present  his  petition,  veri- 
fied by  oath,  to  the  court,  disputing  the  vahdity  of  the  attachment,  or  stating  a  claim 
to  the  property  or  money,  or  to  an  interest  in,  or  lien  on  it  under  any  other 
attachment  or  otherwise,  and  setting  forth  the  facts  upon  which  such  claim  is  founded ; 
and  the  petitioner's  claim  shall  be  in  a  summary  manner  investigated.  The  court 
may  hear  the  proof  or  order  a  reference,  or  may  empanel  a  jury  to  inquire  into  the 
facts.  If  it  is  found  that  the  petitioner  has  title  to,  a  lien  on,  or  any  interest  in  such 
property,  the  court  shall  make  such  order  as  may  be  necessary  to  protect  his  rights. 
The  costs  of  such  proceeding  shall  be  paid  by  cither  party  at  the  discretion  of  the 
court. 

IV.    THE  WRIT— WHAT  IT  SHOULD  CONTAIN. 

The  writ  should  direct  the  officer  to  attach  the  property  of  the 
defendant,  if  sufficient  can  be  found  not  exempt  from  execution, 
to  satisfy  the  claim  of  plaintiff,  the  amount  of  which  should  be 
stated  in  the  writ,  as  a  guide  to  the  sheriff,  in  attaching  the  requi- 
site amount,  which  should  be  fifty  per  cent,  greater  than  that 
amount.  Code,  Sec.  2954.  The  causes  for  the  issuance  of  the 
attachment  need  not  be  recited  in  the  writ.     13  Iowa,  57G. 


V.    OF  THE  SERVICE,  ETC. 

It  is  the  duty  of  the  officer,  on  receiving  the  writ  for  service, 
to  indorse  thereon  the  time  of  receiving  it,  and  proceed  without 
unnecessary  delay  to  serve  the  same. 

Writ  presumed  regular:  when. — The  writ,  if  regular  on 

its  face,  is  his  sufficient  justification  for  serving  the  same,  and  the 
officer  need  not  stop  to  inquire  whether  the  proceedings  have 
been  authorized  or  are  lawful,  or  whether  there  was  a  sufficient 
bond  or  cause  of  action.     11  Iowa,  387. 

He  should  be  diligent  .—In  seeking  property  of  the  defend- 
ant not  exempt  from  execution,  the  officer  must  be  diligent. 

He  should  levy   fifty  per  cent.   more. — The   statute 

directs  the  sheriff  to  levy  fifty  per  cent,  greater  in  value  than  the 
amount  claimed  by  plaintiff;  and  he  is  required  to  attach  that 
amount  of  property  not  exempt  from  execution,  if  found  in  his 
county,  giving  that  in  which  the  defendant  has  a  legal  and 
unquestionable  title  a  preference  over  that  in  which  his  title  is 
doubtful  or  only  equitable.     Code,  Sees.  2954,  2964. 


OF  THE    SERVICE,    ETC.  93 

Not  to  levy  on  property  exempt  .—Under  a  general  writ 
of  attachment  the  officer  should  have  a  care  not  to  attach  prop- 
erty exempt  from  execution.  But  under  a  special  attachment,  as 
•we  shall  hereafter  notice,  the  officer  may  attach  the  property 
directed  to  be  attached  by  the  order  of  the  judge  indorsed 
thereon. 

Bond  no  protection. — The  bond  given  on  suing  out  the 
attachment  is  no  protection  to  the  officer  who  levies  on  exempt 
property,  or  on  property  which  does  not  belong  to  the  defend- 
ant, even  though  directed  so  to  do  by  the  plaintiff.  He  acts  in 
these  respects  at  his  peril,  and  is  liable  to  the  owner  in  trespass 
or  replevin.     13  Iowa,  605. 

And  the  attachment,  or  any  part  thereof,  may  be  dis- 
charged on  motion,  where  it  is  made  to  appear  that  the  attach, 
ment  should  not  have  been  levied  on  all  or  some  of  the  property 
held,  but  the  case  should  be  clear  and  satisfactory.  Code,  Sec. 
3018;  26  Iowa,  297;  9  Iowa,  140. 

Intervention  by  third  parties. — Any  person  other  than 

the  defendant  may  by  intervention  in  the  attachment  suit,  claim 
the  money  or  property,  or  an  interest  in,  or  lien  on  the  property 
attached,  and  on  investigation,  the  court  may  make  such  order 
as  may  be  necessary  to  protect  his  rights.     Code,  Sec.  3016. 

What  constitutes  a  valid  levy  .—To  constitute  a  valid 

levy  on  personal  property,  the  officer  should  be  in  view,  and  take 
actual  possession  of  the  property. 

Where  levy  valid,  not  necessary  to  remove  the  prop- 
erty.— But  it  is  not  necessary  where  there  has  been  a  valid 
levy,  that  he  should  remove  the  property  from  the  possession  of 
the  defendant.  The  levy  in  such  a  case,  would  be  good  as  against 
the  defendant,  and  all  those  having  notice  of  the  levy.  15  Iowa, 
104.  To  constitute  a  levy,  the  officer  should  do  that  which  would 
render  him  liable  as  a  trespasser  in  the  absence  of  the  writ.  25 
Iowa,  464;  3  Wend.,  446;  14  Wend.,  123.  He  should  do  that 
which  would  amount  to  a  change  of  possession,  or  something  that 
would  amount  to  a  claim  of  dominion,  coupled  with  a  power  to 
exercise  it,  and  make  a  complete  inventory  of  it.     23  Iowa,  453. 


94  PROCESS    OF   ATTACHMENT. 

Property  must  l)e  in  view,  or  in  possession  .—It  is  not 

sufficient  to  make  a  levy  on  a  part  of  the  j)roperty,  and  inventory 
other  property  not  in  view,  or  in  possession  of,  or  under  tlie  con- 
trol of  the  officer.  Such  a  levy  is  not  sufficient  on  the  property 
not  in  view  of,  or  in  possession  of,  the  officer  as  against  a  subse- 
quent attaching  creditor,  or  purchaser  in  good  faith  without 
notice,  although  the  property  be  entered  on  the  inventory  by  the 
assent  of  the  defendant.     19  Wend.,  495. 

Nor  is  it  sufficient  for  an  officer  to  seize  a  few  articles  outside 
a  store  or  warehouse,  and  proclaim  a  levy  on  goods  locked  up  in 
the  store  or  warehouse.  He  should,  if  necessary,  break  open  the 
store  or  warehouse,  and  actually  seize  and  possess  the  goods,  and 
make  an  inventory  thereof.     IG  John.,  287. 

Not  necessary  to  touch  or  handle  the  property —But 

it  is  not  necessary  to  a  valid  levy  that  the  officer  should  have 
actually  touched  and  handled  the  property,  or  that  he  should  have 
counted  the  hogs  or  cattle  levied  upon,  if  he  could,  and  did,  other- 
wise ascertain  their  number.  If  he  actually  saw  the  property 
levied  upon,  and  had  it  in  his  possession,  and  under  his  control, 
and  declared  that  he  levied  upon  it,  and  placed  it  under  the  con- 
trol of  a  person  to  hold  for  him,  and  if  by  himself  or  said  person 
he  had  such  possession  and  control  over  the  property,  that  it 
could  not  well  be  taken  from  him,  by  the  defendant  in  the  suit 
without  the  knowledge  of  the  sheriff  or  his  agent,  or  by  an  officer 
with  another  writ,  without  their  knowing  it,  this  would  be  a  suffi- 
cient levy.     11  Iowa,  387. 

What  is  not  a  valid  levy. — A  valid  levy  under  an  execu- 
tion, or  attachment,  cannot  be  made  on  property  the  possession 
of  which  has  been  obtained  by  means  of  fraud  or  violence,  or  an 
abuse  of  official  authority,  and  it  is  error  to  refuse  a  motion  to 
set  aside  an  attachment  on  that  ground. 

Officer  may  break  open  building —The  officer,  for  the 

purpose  of  serving  an  attachment  or  execution,  may,  if  necessary, 
break  open  buildings,  having  first  demanded  entrance. 

He  would  be  justifiable  in  so  doing  in  case  admission  was 
refused,  or  in  case  there  was  no  proper  person  at  hand  from  Avhom 
to  make  a  demand;  provided  property  on  which  to  levy,  is  found 


OF   THE   SERVICE,   ETC.  95 

within;  otherwise,  and  especially  in  cases  where  other  parties  were 
interested,  he  would  be  liable  as  a  trespasser.     16  John.,  287. 

Not  authorized  to  break  opeu  a  dwelling  house —No 

oflBcer,  for  the  purpose  of  serving  an  attachment  or  execution,  is 
authorized  to  break  open  or  enter,  without  permission,  the  dwell- 
ing house  of  another  to  make  a  levy;  for  the  law  considers  the 
home  of  a  person  and  his  family,  too  private  and  sacred  to  permit 
the  unwelcome  intrusion  of  any  one,  except  to  search  for  property 
under  a  search  warrant,  or  to  make  arrests  of  parties  charged  with 
crimes,  which  we  shall  hereafter  consider. 

The  attachment  would  be  no  justification  to  the  officer  in  such 
a  case,  and  a  levy  made  by  such  means  would  be  void. 

May  enter  by  permission. — The  officer  may  enter  a  dwell- 
ing house  of  a  defendant  with  his  permission,  or  that  of  his  fam- 
ily in  his  absence,  and  when  a  lawful  entrance  is  once  effected  he 
may  make  a  valid  levy  upon  property  within;  and  even  break 
open  the  doors  of  rooms  within  the  house,  if  necessary,  to  effect 
this  purpose  after  requesting  that  they  be  opened. 

Where  there  are  several  attachments . — If  there  are  sev- 
eral attachments  against  the  same  defendants,  in  the  hands  of  the 
officer,  they  should  be  executed  by  him  in  the  order  in  which  they 
were  received  by  him;  and  if  after  an  attachment  is  placed  in  his 
bands  for  service,  any  property  of  the  defendant  is  moved  from 
the  county,  he  may  pursue  and  attach  the  same  in  an  adjoining 
county  within  twenty-four  hours  after  the  removal.  Code,  Sees. 
2965,  2966. 

No  appraisement. — No  appraisement  of  the  property  is  neces- 
sary, except  in  certain  cases  which  we  shall  hereafter  notice. 
9  Iowa,  376. 

Special  property  in  the  officer. — By  the  levy,  the  officer 

acquires  a  especial  property  in  the  goods  attached,  and  may  main- 
tain trespass  or  replevin  for  the  same,  against  any  person  taking 
them  from  him;  and  if  left  with  a  third  party  as  bailee,  or  recep- 
tor, or  for  safe  keeping,  such  custody  is  deemed  that  of  the  officer, 
and  replevin  may  be  brought   therefor;  or  if  the  same  is  stolen, 


96  PROCESS   OF   ATTACHMENT. 

they  may  be  charged  in  the  indictment  as  the  property  of  the 
officer.  17  John.,  128;  15  Iowa,  47;  10  Wend.,  165;  7  Cow.,  297; 
8  Cow.,  137. 

Mode  of  levying  on  real  estate. — The  mode  of  levying 

upon  real  estate  is  to  indorse  a  description  of  the  land  upon  the 
writ,  and  also  to  enter  the  same  in  the  "Incumbrance  Book" 
required  to  be  kept  by  the  clerk,  with  the  statement  that  the 
same  has  been  attached,  and  stating  the  cause  in  which  the  same 
has  been  attached,  and  when  it  was  done,  which  statement  should 
be  signed  by  the  sheriff.  No  attachment  of  real  property  is 
notice  to  a  subsequent  vendee  or  incumbrancer  in  good  faith,  until 
this  is  done.     Code,  Sec.  3022. 

Money  attached. — Money  attached  by  an  officer,  or  coming 
into  his  hands  by  virtue  of  an  attachment,  should  be  forthwith 
paid  over  to  the  clerk,  and  the  officer  should  make  such  disposi- 
tion of  other  property  as  may  be  directed  by  the  court  or  judge; 
and  where  there  is  no  direction  on  the  subject  he  should  safely 
keep  the  property  subject  to  the  order  of  the  court.  Code,  Sees. 
2971,  2972. 

Expenses  incurred. —  The  keeping  of  attached  property 
will  sometimes  involve  the  care  and  feeding  of  live  stock,  and 
for  necessary  expenses  incurred  thereby,  or  the  keeping  of 
attached  property,  the  sheriff  is  entitled  to  remuneration,  which 
should  be  paid  in  the  first  instance  by  the  plaintiff,  and  the 
amount  should  be  returned  by  the  sheriff  and  entered  up  as  costs 
in  the  case.     Code,  Sec.  3013. 

VI.    OF  GARNISHMENT,  AND  PROCEEDINGS  UNDER 
THE  CODE  THEREIN. 

How  effected. — Section  2975.  The  attachment  by  garnishment  is  effected  by 
informing  the  supposed  debtor  or  person  holding  the  property,  that  he  is  attached  as 
garnishee,  and  by  leaving  with  him  a  written  notice  to  the  effect  that  he  is  required 
not  to  pay  any  debt  due  by  him  to  the  defendant,  or  thereafter  to  become  due,  and 
that  he  must  retain  possession  of  all  property  of  the  said  defendant  then  or  thereafter 
being  in  his  custody,  or  under  his  control,  in  order  that  the  same  may  be  dealt  with 
according  to  law,  and  the  sheriff  shall  summon  such  persons  as  garnishees  as  the 
plaintiff  may  direct. 

Sec.  2976.  A  sheriff  or  constable  may  be  garnished  for  money  of  the  defendant 
in  his  hands.    So  may  a  judgment-debtor  of  the  defendant,  when  the  judgment  has 


GARNISHMENT   PKOCEEDINGS.  97 

not  been  previously  assigned  on  the  record,  or  by  writing  filed  in  the  office  of  the 
clerk,  and  by  him  minuted  as  an  assignment  on  the  margin  of  the  judgment  docket, 
and  also  an  executor  for  money  due  from  the  decedent  to  the  defendant  may  be  gar- 
nished, but  a  municipal  or  political  corporation  shall  not  be  garnished. 

Sec.  2977.  Where  the  property  to  be  attached  is  a  fund  in  court,  the  execution 
of  the  writ  of  attachment  shall  be  by  leaving  with  the  clerk  of  the  court  a  copy 
thereof,  with  notice  specifying  the  fund. 

Sec.  2978.  If  the  garnishee  die  after  he  has  been  summoned  by  garnishment,  and 
pending  the  litigation,  the  proceedings  may  be  revived  by  or  against  his  heirs  or  legal 
representatives. 

Sec.  2979.  Unless  exempted,  as  provided  in  the  next  section,  the  notice  must  also 
require  the  garnishee  to  appear  on  the  first  day  of  the  next  term  of  the  court,  wherein 
the  main  cause  is  depending,  or  on  the  day  fixed  for  trial  if  in  a  justice's  court,  and 
answer  such  interrogatories  as  may  be  then  propounded  to  him,  or  that  he  will  be 
liable  to  pay  the  entire  judgment  which  the  plaintiff  eventually  obtains  against  the 
defendant. 

Sec.  2980.  When  the  plaintiff,  in  writing,  directs  the  sheriff  to  take  the  answer  of 
the  garnishee,  the  sheriff  shall  put  to  the  garnishee  the  following  questions: 

1.  Are  you  in  any  manner  indebted  to  the  defendant  in  this  suit,  or  do  you  owe 
^  him  money  or  property,  which  is  not  yet  due?    If  so,  state  the  particulars. 

2.  Have  you  in  your  possession,  or  under  your  control,  any  property,  rights,  or 

credits  of  the  said  defendant?     If  so,  what  is  the  value  of  the  same,  and 
state  all  particulars. 

3.  Do  you  know  of  any  debts  owing  to  said  defendant,  whether  due  or  not  d\ie, 

or  any  property,  rights,  or  credits  belonging  to  him  and  now  in  the  posses- 
sion or  under  the  control  of  others?    If  so,  state  the  particulars,  and  append 
the  examination  to  his  return. 
Sec.  2981.     If  the  garnishee  refuses  to  answer  fully  and  unequivocally  all  the  fore- 
going interrogatories,  he  shall  be  notified  and  required  to  appear  and  answer  on  the 
first  day  of  the  next  term  of  court,  or  on  the  day  fixed  for  trial,  as  above  provided, 
and  so  he  may  be  required  in  any  event,  if  the  plaintiff  so  notify  him. 

Sec.  2982.  The  questions  propounded  to  the  garnishee  in  court,  may  be  such  as 
are  above  prescribed,  to  be  asked  by  the  sherifiF,  and  such  others  as  the  court  may 
think  proper  and  right. 

Sec.  2983.  Where  the  garnishee  is  required  to  appear  at  court,  unlesss  he  has 
refused  to  answer,  as  contemplated  above,  he  is  entitled  to  the  pay  and  milear.e  of  an 
ordinary  witness,  and  may,  in  like  manner,  require  payment  beforehand,  in  order  to 
be  made  liable  for  non-attendance. 

NOTICE  OF  GARNISHMENT. 
No.  GT. 

In  the  ....  Court  of  the,  State  of  lowa^  in  and  for  ....  county. 

Q  ...  D....,  Plaintiff, 


E F ,  Defendant. 

To  G....  H.... 

You  are  hereby  notified  that  you  are  attached  as  garnishee 
in  the  above  entitled  action;  and  you  are  hereby  required  not  to 
pay  any  debt   due  by  you  to  the  defendant  herein,  or  hereafter 

7 


98  PROCESS   OP   ATTACHMENT. 

to  become  due,  and  that  you  must  retain  possession  of  all  prop- 
erty of  the  said  defendant,  now  or  hereafter  being  in  your  cus- 
tody, or  under  you  control,  in  order  that  the  same  may  be  dealt 
with  according  to  law. 

And  you  are  hereby  further  required  to  be  and  appear  at  the 
said  court  on  the  first  day  thereof,  which  will  commence  on  the 
....  day  of  . .  . . ,  A.  D.  18 . . ,  and  answer  such  interrogatories  as 
may  then  be  propounded  to  you,  or  you  will  be  liable  to  pay  the 
entire  judgment  which  the  plaintiff  may  eventually  obtain  against 
the  defendant.. 

Dated,  ..  ,.,A.  D.  18... 

A . . . .  B . ,  Sheriff  of  ....  county. 

Answers  taken  by  the  sheriff. — The  plaintiff  may  direct 

the  answer  of  garnishee  to  be  taken  by  the  sheriff,  which  direc- 
tion should  be  in  writing, 

DIRECTION  TO  SHERIFF. 

In  the  ....  Court  of  the  State  of  Iowa,  in  and  for . . , .  county. 
C D ,  Plaintiff, 

V. 

E . . . .  F . . . . ,  Defendant. 
To  the  sheriff  of  said  county: 

You  are  hereby  directed  to  garnishee  G  H,  on  the  attach- 
ment issued  in  the  above  entitled  cause,  and  take  his  answers 
thereon  as  provided  by  law. 

C...  D....,  Plaintiff, 
By  I . . . .  J .... ,  his  attorney. 

QUESTIONS  PROVIDED  BY  STATUTE. 
No.  69. 

First — Are  you  in  any  manner  indebted  to  the  defendant  in 
this  suit,  or  do  you  owe  money  or  property  which  is  not  yet  due? 
If  so,  state  the  particulars. 

Second — Have  you  in  your  possession,  or  under  your  control 
any  property,  rights,  or  credits  of  the  said  defendant?  If  so, 
what  is  the  value  of  the  same,  and  state  all  the  particulars. 

Third — Do  you  know  of  any  debts  owing  to  the  said  defend- 
ant, whether  due  or  not,  or  any  property,  rights,  or  credits 
belonging  to,  and  now  in  the  possession  or  under  the  control  of 
others?     If  so,  state  the  particulars. 

You  do  solemnly  swear  that  you  have  made  full  and  true 
answers  to  the  above  questions,  touching  the  matter  wherein  you 
have  been  attached  as  garnishee,  so  help  ....    God. 

Subscribed  and  sworn  to  before  me  this day  of    . . . . ,  A. 

D.  18... 

,  Sheriff  of  . . . .  county. 


GARNISHMENT   PROCEEDINGS.  99 

Where  the  plaiiitiflP  desires  the  garnishee  to  appear. 

— If  the  plaintiff  in  addition  to  the  answers  to  the  officer,  desires 
the  garnishee  to  appear  at  court  on  the  first  day  thereof,  as  pro- 
vided by  the  statute,  he  may  add  to  the  notice  to  the  sheriff  the 
following:  ''And  you  are  required  to  notify  him  to  appear  and 
answer  on  the  first  day  of  the  next  term  of  said  court." 

Municipal  corporations. — The  statute  provides  that  muni- 
cipal corporations  shall  not  be  garnished;  but  they  may  waive 
their  statutory  rights.     5  Iowa,  285;  25  Iowa,  315;  22  Iowa,  2G1. 

Exemptions  and  limitations. — It  will  be  a  matter  of 
interest  to  officers  charged  with  the  service  of  attachments,  as 
well  as  of  executions,  to  observe  the  exemption  laws,  which  pro- 
vide that  the  earnings  of  a  debtor  for  his  personal  services,  or 
those  of  his  family  at  any  time  within  ninety  days,  next  prece- 
ding the  levy,  shall  be  exempt  from  levy,  and  also  the  provision 
limiting  exemptions,  where  a  debtor  has  started  to  leave  the  State. 
Code,  Sees.  3074,  3076. 

The  provisions  of  the  Code  relating  to  exemptions,  may  be 
found  in  Chapter  Six  on  the  process  of  execution. 

Cannot  garnish  without  a  writ. — A  sheriff  without  a 

writ  of  attachment  or  execution,  (which  we  shall  hereafter  con- 
sider), is  not  authorized  to  notify  a  party  as  garnishee,  nor  take 
his  answers  as  such,  and  a  judgment  rendered  against  a  garnishee 
under  such  circumstances  and  without  an  appearance  on  his  part, 
would  be  erroneous.     8  Iowa,  251. 

Answer  of  garnishee:  how  made.— The  answer  of  the 

garnishee  need  not  be  made  categorically  to  the  questions  laid 
down  in  the  statute,  but  he  may  state  facts  and  circumstances* 
and  leave  the  question  of  liability  to  the  court.  1  Iowa,  460;  3 
Iowa,  325. 

(xarnishment  of  a  firm:  how  served. — A  garnishment  of 

a  firm  should  be  served  on  a  member  of  the  firm  the  same  as  an 
original  notice,  but  the  answer  of  one  member  of  the  firm,  on  a 
notice  directed  to  him,  will  not  bind  the  firm.     10  Iowa,  498. 

Mortgaged  personal  property  not  subject  to  levy.— 

Personal    property    mortgaged,    cannot    be    levied    on,    but   the 


100  PEOCESS    OP   ATTACHMENT. 

mortgagee  may  be  garnished  and  required  to  reveal  the  amount  of 
his  claim  unpaid,  the  amount  and  value  of  the  mortgaged  jiroperty 
he  holds  as  security  for  the  same,  and  he  should  be  held  respon- 
sible from  the  time  of  garnishment  for  the  surplus  of  any  proper- 
ty mortgaged,  over  and  above  the  payment  of  his  own  claim. 
9  Iowa,  407;  11  Iowa,  435. 

VIT.  RELEASE  OF  ATTACHED  PROPERTY. 

The  sections  of  the  Code  relating  to  the  release  of  attached 
property  are  as  follows: 

By  defendant  executing'  a  bond. — Section  2994.  If  the  defendant,  at  any- 
time before  judgment,  causes  a  bond  to  be  executed  to  the  plaintiff  with  sufficient 
securities  to  be  approved  by  the  officer  having  the  attachment,  or,  after  the  return 
thereof  by  the  clerk,  to  the  effect  that  he  will  perform  the  judgment  of  the  court,  the 
attachment  shall  be  discharged  and  restitution  made  of  property  taken  or  proceeds 
thereof.  The  execution  of  such  bond  shall  be  deemed  an  appearance  of  .'•uch 
defendant  to  the  action. 

Judgment  on  bond. — Sec.  2995.  Such  bond  shall  be  part  of  the  record,  and,  if 
judgment  go  against  the  defendant,  the  same  shall  be  entered  against  him  and  sure- 
ties. 

By  defendant  or  person  in  possession  giving  bond. — Sec.  2996.  The  defend- 
ant, or  any  person  in  whose  possession  any  attached  property  is  found,  or  any  person 
making  affidavit  that  he  has  an  interest  in  it,  may,  at  any  time  before  judgment,  dis- 
charge the  property  attached,  or  any  part  thereof,  by  giving  bond  with  security,  to 
be  approved  by  the  sheriff,  in  a  penalty  at  least  double  the  value  of  the  property 
sought  to  be  released,  but  if  that  sum  would  exceed  three  times  the  claim,  then  in 
such  sum  as  equals  three  times  the  claim,  conditioned  that  such  property,  or  its  esti- 
mated value,  shall  be  delivered  to  the  sheriff  to  satisfy  any  judgment  which  may  be 
obtained  against  the  defendant  in  that  suit  within  twenty  days  after  the  rendition 
thereof.     This  bond  shall  be  filed  with  the  clerk  of  the  court. 

Appraisejnent  of  property. — Sec.  2997.  To  determine  the  value  of  property  in 
cases  where  a  bond  is  to  be  given,  unless  the  parties  agree  otherwise,  the  sheriff  shall 
summon  two  disinterested  persons  having  the  qualification  of  jurors,  who,  after  hav- 
ing been  sworn  by  him  to  make  the  appraisement  faithfully  and  impartially,  shall 
proceed  to  the  discharge  of  their  duty.  If  such  persons  disagree  as  to  the  value  of 
the  property,  the  sheriff  shall  decide  between  them. 

Defense  to  action  on  bond. — Sec.  2998.  In  an  action  brought  upon  the  bond 
above  contemplated,  it  shall  be  a  sufficient  defense  that  the  property  for  the  delivery 
of  which  the  bond  was  given,  did  not.  at  the  time  of  the  levy,  belong  to  the  defend- 
ant against  whom  the  attachment  was  issued,  or  was  exempt  from  seizure  under  such 
attachment. 

Delivery  Bond:  its  effect.— An  informal  delivery  bond, 
though  defective  as  a  statutory  bond,  will  hold  the  parties 
thereto  liable,  if  it  is  valid  as  a  common  law  obligation;   and  to 


RELEASE  OF  ATTACHED  PBOPEETY.  101 

entitle  the  plaintiff  to  recover,  it  is  not  necessary  for  the  court 
to  order  a  sale  of  the  attached  property;  the  execution  of  the  bond 
takes  the  property  from  the  custody  of  the  law.    23  Iowa,  21. 

Bond  takes  the  place  of  the  attachment  lien.— The 

delivery  bond  in  the  form  prescribed  by  law,  is  a  new  security 
and  takes  the  place  of  the  attachment  lien,  releasing  the  pro- 
perty from  the  custody  of  the  law,  and  leaving  it  in  the  posses- 
sion of  the  debtor  or  his  personal  representatives,  free  from  the 
attachment.     10  Iowa,  302  ;  12  Iowa,  22. 

To  release  property  in  hands  of  garnishee. — It  may 

be  given  for  the  release  of  property  in  the  hands  of  garnishees 
as  well  as  for  property  actually  taken  into  the  possession  of  the 
officer. 

To  be  given  to  the  plaintiff. — The  bond  should  be  given 
to  the  plaintiff;  but  if  made  to  the  sheriff,  the  plaintiff  can  sue 
and  recover  upon  it  without  an  assignment  of  it.  to  him  by  the 
sheriff;  and  in  an  action  on  the  bond,  it  is  not  necessary  to  aver 
and  prove  an  appraisement  of  the  property  levied  on,  or  garn- 
ished.    9  Iowa,  474  ;  12  Iowa,  570. 

DELIVEEY  BOND. 
No.  VO. 

Know  all  men  by  these  presents  : 

That  we,  A  B,  principal,  and  C  D,  security,  are  held  and  firmly 
bound  unto  E  F,  in  the  sum  of  ....  dollars  [here  insert  a  sura 
equal  to  double  the  amount  claimed  by  plaintiff],  for  the  pay- 
ment of  which  well  and  truly  to  be  made,  we  bind  ourselves 
firmly  by  these  presents.  The  condition  of  this  obligation  is 
such,  that  whereas,  G  11,  sheriff  of. . .  .county,  Iowa,  by  virtue  of 
a  writ  of  attachment  to  him  directed,  issued  out  of  the  office  of  the 
clerk  of  the. . .  .Court  of  said  State,  within  and  for. .  .  .county,  in 
an  action  wherein  A  B  is  plaintiff,  and  E  F  is  defendant,  did,  on 
the . .  .day  of .  . .  18 . . ,  attach  and  levy  upon  the  following  described 
property,  to-wit :  [Ilere  insert  a  description  of  the  property 
levied  upon.]  And  whereas,  the  said  E  ¥  desires  to  have  said 
levy  discharged,  and   to    obtain   a   restitution  of  said  property: 

Now,  therefore,  if  the  said  E  F  shall  in  all  things  well  and 
truly  perform  any  judgment  of  said  court  which  may  be  rendered 
against  him  in  said  action,  then  this  obligation  to  be  void,  other- 
wise to  remain  in  full  force  and  virtue. 

Witness  our  hands  and  seals,  this ....  day  of . . . .  18 . . . 

A...  B.... 
C....D.... 


102  PROCESS    OF   ATTACHMENT. 

The  sheriflF  should  indorse  an  approval  of  the  bond  thereon,  as 
follows : 

APPROVAL  OF  BOND. 
No.  Vl. 

I  hereby  approve  the  within  bond  and  surety  therein. 
Dated 18...  A....  B. ...,  Sheriff. 

Delivery  Bond  on  claim  of  property.— The  delivery 
bond  required  under  section  2996,  of  the  Code  on  a  claim  of  the 
property,  may  be  as  follows  : 

DELIVERY  BOND. 
No.  72. 

Know  all  men  hy  these  presents : 

That  we,  A  B,  principal,  and  C  D,  surety,  are  held  and  firmly 
bound  unto  E  F,  in  the  sum  of.  ...dollars  [here  insert  double 
the  value  of  the  property  to  be  released,  unless  that  sum  would 
exceed  three  times  the  amount  of  the  claim,  in  Avhich  case  insert 
three  times  the  amount  of  the  claim],  for  the  payment  of  which 
well  and  truly  to  be  made,  we  bind  ourselves  firmly  by  these 
presents. 

The  condition  of  this  oblig'ation  is  such,  that  whereas.  .  .  .sher- 
iff of . .  . .  county,  Iowa,  by  virtue  of  a  writ  of  attachment  to  him 
directed,  and  issued  out  of  the  office  of  the  clerk  of  the,  . .  .Court 
of  said  State,  within  and  for  said  county,  in  an  action  wherein 
said  E  F  is  plaintiff,  and  G  H  is  defendant,  did,  on  the ....  day  of 
....  18.  .,  attach  and  levy  upon  the  following  described  property, 
to-wit  :  [Here  describe  the  property.]  And  of  the  estimated 
value  of  §....;  and  whereas  said  A  B,  the  person  in  whose  pos- 
session said  attached  property  was  found  (or  the  person  who  has 
made  an  affidavit  that  he  has  an  interest  in  said  property),  desires 
to  have  said  property  discharged  from  said  attachment  and  levy  : 

Now  therefore,  if  the  said  A  B,  shall  deliver  said  property  or 
its  estimated  value  as  aforesaid  to  said  sheriff,  to  satisfy  any  judg- 
ment that  may  be  rendered  against  said  defendant  in  said  suit, 
within  twenty  days  after  the  rendition  thereof,  then  this  obliga- 
tion to  be  void,  otherwise  to  remain  in  full  force  and  virtue. 
Witness  our  hands  this  ....  day  of  .  . . .,  18. . 

A . . . .    B . . . . ,  Principal. 
C . . . .   D . . . . ,  Surety. 

Approval  of  the  bond. — The  bond  should  be  approved  like 
the  foregoing  one,  and  be  returned  to,  and  filed  with,  the  clerk  of 
the  court. 

Value  of  the  property :  how  determined  .—To  determine 
the  value  of  the  property  as  contemplated  in  the  above  bond,  unless 


RELEASE  OF  ATTACHED  PEOPERTY.  103 

the  parties  can  otherwise  agree,  the  sheriff  should  summon  two 
disinterested  persons,  having  the  qualification  of  jurors  who  being 
duly  sworn  by  the  sheriff  to  faithfully  and  impartially  appraise 
the  property,  shall  proceed  to  appraise  the  same,  and  if  they  can- 
not agree  as  to  the  value,  the  sheriff  shall  decide  between  them. 
If  a  summons  is  required,  it  may  be  served  the  same  as  an  orig- 
inal notice,  and  in  the  following  form: 

SUMMONS  TO  APPEAISEES. 
No.  73. 

State  of  Iowa,      ") 
County,      j 

To  B  C,  and  D  E. 

In  the  name  of  theState  of  Iowa:  You,  and  each  of  you,  are 
hereby  summoned  and  required  to  be  and  appear  forthwith,  [or 
at  such  time  as  may  be  required,]  at  the  .  . . . ,  [naming  the  house 
or  place],  in  the  city  [or  town  or  township]  of  .  . . . ,  to  examine 
and  appraise  the  value  of  certain  personal  property  attached,  and 
now  held  by  me  the  undersigned  sheriff  of  ....  county,  by  virtue 
of  a  writ  of  attachment  issued  by  the  clerk  of  the  ....  Court  of 
said  county,  in  a  certain  action  wherein  A  B,  is  plaintiff,  and 
C  D,  is  defendant.     And  hereof  fail  not  at  your  peril. 

Dated 18.. 

A  —  .   B . . . . ,  Sheriff  of  ... .  county^  Iowa. 


OATH  TO    APPRAISERS. 
No.  74. 

The  State  or )  ^ 

County,     ) 


\ 


We  B  C  and  D  E,  of  said  county,  do  each  solemnly  swear  that 
we  will  faithfully  and  impartially  appraise  the  certain  personal 
property  attached  by  A  B,  sheriff  of  said  county,  by  virtue  of  a 
certain  writ  of  attachment,  now  in  the  hands  of  said  officer,  and 
a  true  report  make  thereon,  according  to  the  best  of  our  knowl- 
edge and  ability.  B....  C   ..., 

D....  E 

The  foregoing  oath  was  this ....  day  of . . . .  18 .  . . ,  by  me  admin- 
istered to,  and  subscribed  by  the  said  B  C,  and  D  E,  and  each  of 
them. 

A . . . .  B . . . , ,  Sheriff  of. . . .  county^  loica. 

EEPOfiT  OP  appraisers. 
No.   75. 

State  of  Iowa,      ) 

(,        . '       }-  ss. 
County,     ) 

We,  the  undersigned  appraisers,  summoned  and  duly  sworn  as 


104  PROCESS    OF    ATTACHMENT. 

such  by  the  sheriff  of  of  said  county,  to  appraise  the  following 
described  property  levied  upon  by  such  sheriif  by  virtue  of  a  cer- 
tain writ  of  attachment,  do  hnd  and  report,  that  we  have  apprais- 
ed said  property,  as  shown  by  the  following  inventory  thereof: 

INVENTORY, 

One  two-horse  carriage,  appraised  at $175  00 

One  span  of  mules,  '•  " 2o0.00 

One  gold  watch,  "  « 150.00 

Total  value,     $575.00 
Dated 18... 

Fees: — 
B   C,  six  hours,  $1.50.  B....C....)    , 

D  E,   "      "         1,50.  D....E....  p^-?'^'*^*'^^^- 


VIII.     PERISHABLE  PROPERTY. 

Provisions  of  the  statute. — The  Code  provides  for  the  sale 

of  perishable  property  taken  on  attachment  as  follows: 

How  and  when  done. — Section  2999.  When  the  sheriff  thinks  the  property 
attached  in  danger  of  serious  and  immediate  waste  and  decay,  or  when  the  keeping 
of  the  same  will  necessarily  be  attended  with  such  expense  as  greatly  to  depreciate 
the  amount  of  proceeds  to  be  realized  therefrom,  or  when  the  plaintiff  makes  affida- 
vit to  that  effect,  the  sheriff  may  summon  three  persons  having  the  qualification  of 
jurors  to  examine  the  same.  The  sheriff  shall  give  the  defendant,  if  within  the  county 
three  days'  notice  of  such  hearing,  and  he  may  appear  before  such  jury  and  have  a 
personal  hearing.  If  they  are  of  the  opinion  that  the  property  requires  soon  to  be 
disposed  of,  they  shall  specify  in  writing  a  day  beyond  which  they  do  not  deem  it 
prudent  that  it  should  be  kept  in  the  hands  of  the  sheriff.  If  such  day  occurs  before 
the  trial  day,  he  shall  thereupon  give  the  same  notice  as  for  sale  of  goods  in  execu- 
tion, and  for  the  same  length  of  time,  unless  the  condition  of  the  property  renders  a 
more  immediate  sale  necessary.  The  sale  shall  be  made  accordingly.  If  the  defend- 
ant gives  his  written  consent,  such  sale  may  be  made  without  such  finding. 

Summons  and  oath  to  appraisers.  —  The  summons  and 

oath  to  appraisers  under  the  provision,  may  be  the  same  with  a 
little  modification  as  in  Nos.  73  and  74. 

NOTICE  TO  BE  SERVED  ON  THE  DEFENDANT. 
N"o-  76. 

To  G....  H....: 

You  are  hereby  notified  that  on  the ....  day  of ,  . . .  18 . . ,  at . . . . 

in  the  town  of ,  in  the   county  of and  State  of  Iowa,  a 

jury  of  three  persons  summoned  by  me,  will  meet  for  the  pur- 
pose of  examining  and  deciding  upon  the  necessity  of  an  imme- 
date  sale  of  certain  personal  property  levied  upon  by  me,  by  vir- 
tue of  a  certain  writ  of  attachment  sued  out  of  the  office  of  the 


PERISHABLE.  PEOPEETY.  105 

clerk  of . . . .  Court  of  said  county,  against  your  property,  at  the 
suit  of  K  L,  plaintiff,  and  against  you,  defendant,  and  at  which 
time  and  place  you  can  appear,  if  you  think  proper. 

Dated ,18.. 

A B . . . . ,  Sheriff  of. . ..  County^  Iowa. 

REPORT  OF  JURY  FOR  A  SALE. 
No.  77. 

State  of  Iowa,      ) 

n       \      r  ss. 
Oounty.  ) 

We,  the  undersigned,  jurors  duly  summoned  and  sworn  by  A 
B,  sheriff  of  said  county,  to  determine  the  necessity  of  an  imme- 
diate sale  of  certain  personal  property,  to-wit:  [here  describe  the 
property]  levied  upon  by  said  sheriff,  by  virtue  of  a  writ  of  attach- 
ment in  favor  of  L  L,  and  against  the  property  of  G  H,  as  is 
alleged,  do  find  and  report,  that  said  property  is  in  danger  of 
serious  and  immediate  waste  and  decay  (or  that  the  keeping  of 
the  same  will  necessarily  be  attended  with  such  expense  as 
greatly  to  depreciate  the  amount  of  proceeds  to  be  derived 
therefrom),  and  we  do  not  deem  it  prudent  that  it  should  be 
kept  in  the  hands  of  the  said  sheriff  beyond  the ....  day  of . . . . 
18.. 

Dated....day  of.  ...18..  O....   P....) 

Q R . . . .  V  Jurors, 

S....  T....  ) 

Finding  against  a  sale. — If  the  jury  should  be  of  opin- 
ion that  there  was  no  danger  of  immediate  waste  or  decay  of 
the  property,  and  that  the  keeping  of  the  same  would  not  neces- 
sarily be  attended  with  such  expense  as  greatly  to  depreciate 
the  amount  of  proceeds  to  be  realized  therefrom,  the  jury  should 
so  find  and  report,  and  the  above  form  can  be  changed  to  meet 
that  case. 

Judge  Conklin's  remarks. — Judge  Conklin,  in  his  valu- 
able "  Treatise  on  the  Powers  and  Duties  of  Justices  of  the 
Peace,"  makes  the  following  remarks  relating  to  the  jury  in 
such  cases:  * 

"The  jury  should  be  sworn  by  the  oflBcer,  though  their  oath 
need  not  be  in  writing.  It  will  be  sufficient  if  the  officer  returns 
that  they  were  sworn. 

"If  all  those  summoned  do  not  appear,  the  officer  may  com- 
plete the  number,  on  the  day  of  the  hearing,  from  any  compe- 
tent persons  present,  or   he   may   serve    the  same  summons  on 


106  PROCESS    OF   ATTACHMENT. 

others  in  the  neighborhood,  and  require  them  to  appear  forth- 
with. Persons  properly  served  and  failing  to  obey  the  summons 
■without  sufficient  excuse,  would  doubtless  be  guilty  of  contempt 
of  the  court  issuing  the  writ,  and  might  be  cited  before  such 
court  and  dealt  with  accordingly." 

Defendant  entitled  to  a  hearing. — From  the  provision  of 

the  Code  requiring  notice  to  the  defendant,  it  is  evident  that  the 
defendant  may  have  a  hearing  before  the  jury,  on  the  question 
presented  to  them,  and  every  reasonable  privilege  should  be 
extended  to  him  by  the  sheriff  and  the  jurors  in  examining  the 
property,  and  in  presenting  evidence,  if  he  so  desires,  bearing  on 
the  question,  which  might  be  of  such  a  character  as  to  require 
the  opinion  of  experts. 

Sheriff's  duty  on  the  finding. — If  the  jury  find  that  a  sale 
is  necessary,  the  sheriff  should  proceed  to  sell  as  on  execution, 
except  where  the  time  fixed  by  the  jury  for  a  sale  would  prevent 
the  delay  of  giving  the  usual  notice,  in  which  case  the  length  of 
notice  might  doubtless  be  made  less. 

If  defendant  consents. — In  case  the  defendant  consents  in 
writing  that  the  sale  may  take  place  without  such  finding,  it  may 
be  so  made. 

DEFENDANT'S  CONSENT  TO  SALE. 

No.  rs. 

I  hereby  consent  that  a  sale  of  the  property  attached  by  A 
B,  sheriff  of  ....  county,  Iowa,  on  the  within  (or  annexed)  writ, 
may  be  made  immediately,  (or  specify  the  time  and  manner  of 
notice),  and  without  the  finding  of  a  jury  on  the  necessity  of  such 
sale. 

Dated  this  ....  day  of  .  . . . ,  18 . . . 

G . . . .  H  —  . ,  Defendant. 

IX.    SPECIFIC  ATTACHMENTS. 

The  provisions  of  the  Code  in  reference  to  specific  attachments, 
have  already  been  referred  to.     Code,  Sees.  3003,  3004. 

What  the  writ  must  contain. — The  writ,  in  case  of  spe- 
cific attachments,  must  describe  the  property  to  be  attached,  and 
the  directions  of  the  court  or  judge  allowing  the  attachment,  as 


SPECIFIC   ATTACHMENT EETUKN   OF   ATTACHMENT.  107 

to  the  disposition  to  be  made  of  the  attached  property,  if  any, 
must  be  indorsed  on  the  writ. 

The  officer  should  execute  the  same  on  the  property,  and  per- 
sue  the  directions  indorsed  on  the  writ,  as  aforesaid. 

If  no  directions  are  indorsed,  the  proceedings  should  be  the 
same  as  in  case  of  general  attachment. 

The  officer  would  be  protected  in  attaching  the  specific  prop- 
erty in  all  cases,  according  to  the  requirements  of  the  writ,  even 
though  it  Avould  otherwise  be  exempt  from  levy. 

When  levy  invalid. — Where  the  officer  receiving  a  specific 
attachment,  not  having  upon  it  the  directions  of  a  court  or  judge, 
did  not  take  the  property  into  his  custody,  nor  give  notice  of  a 
levy,  nor  make  such  return  as  the  statute  requires,  the  levy  was 
held  invalid.     23  Iowa,  453. 

XI.     THE  RETURN  OF  ATTACHMENTS. 

What  it  should  contain.— It  is  evident  from  the  provisions 
of  the  statute,  hereinbefore  set  forth,  that  the  return  should  con- 
tain a  complete  history  of  the  doings  of  the  officer  by  virtue  of 
the  writ. 

It  should  show  how  and  Avhen  the  levy  was  made,  and  what 
property  was  attached,  and  how  disposed  of,  and  an  inventory  of 
the  same  should  be  attached  to  the  return. 

In  case  a  bond  or  bonds  are  given  for  a  release  or  return  of  the 
property,  these,  with  the  proceedings  on  the  appraisement,  if  any, 
should  be  returned,  and  where  garnishments  have  been  made,  the 
names  of  the  garnishees,  the  time  when  each  were  notified  or 
summoned,  and  their  answers,  if  any,  must  be  returned. 

Where  real  estate  has  been  attached,  the  sheriff  should  describe 
it,  and  when  he  can  do  so,  reference  should  be  made  to  the  book 
and  page  where  the  deed  under  which  the  defendant  holds  the 
property  is  recorded.     Code,  Sec.  3010.  . 

SHERIFF'S  RETURN  TO  ATTACHMENT  WRIT. 

No.  rn. 

State  of   Iowa,      ) 
....    County.    \ 
I,  A  B,  sherifi"  of  said  county,  hereby  certify  and  return,  that  I 


108  PEOCESS   OP   ATTACHMENT. 

received  the  within  (or  annexed)  writ,  for  service  on  the  ....  day 
of  .  .  . . ,  18 .  . ;  that  on  the  ....  day  .  . .  . ,  18 . . ,  (or  on  the  same 
day,)  by  virtue  thereof  I  attached,  and  levied  upon  the  following 
described  real  estate  of  the  defendant,  to-wit:  [Here  describe 
the  real  estate;]  that  on  the  ....  day  of  . . . .,  18.  .,  by  virtue  of 
said  writ  1  attached  and  levied  upon  the  personal  property 
described  as  follows:  [Here  describe  the  property  accurately,  and 
give  an  inventory  of  each  article;  or  state  that  an  inventory  is 
contained  in  the  Exhibit  hereto  attached  and  marked  "  Exhibit 
A,"]  as    the  property  of  said  defendant;  that  on  the  ....  day  of 

.,  18.  .,  by  virtue  of  said  writ,  I  attached  as  garnishee  F  G, 

by  informing  him  that  he  was  attached  as  garnishee,  and  by  leav- 
ing with  him  a  written  notice,  a  copy  of  which  is  hereto  attached 
marked  "  Exhibit  B,"  and  that  at  the  request  of  the  plaintiff 
made  in  writing,  I  took  the  answers  of  said  garnishee  as  provided 
by  law,  which  request  and  answers,  are  hereto  attached  marked 
"  Exhibit  C;"  that  on  the  ....  day  of  . . . .,  18. .,  the  defendant 
with  O  P,  as  surety,  executed  and  delivered  to  me  a  bond  for  the 
release  of  the  personal  property  attached  and  levied  upon  (or  the 
garnishment,  or  both),  as  above  described,  which  bond  was  duly 
approved  by  me,  and  is  hereto  attached  and  made  a  part  hereof, 
marked  "  Exhibit  D."  [If  there  has  been  a  sale  of  the  property 
after  the  finding  of  a  jury  of  the  necessity  therefor,  or  by  consent 
of  the  defendant  say:] 

I  further  certify  and  return,  that  on  the.  .  .  .  day  of. .  . .  18. ., 
thinking  said  personal  property  in  danger  of  serious  and  imme- 
diate waste  and  decay,  I  summoned  three  competent  persons  as 
jurors,  to  determine  that  question,  at. . .  .,  on  the. . .  .day  of . . . . 
18..,  at ...  o'clock,  . .  M.,  and  gave  the  defendant  three  days' 
notice  thereof ;  that  said  persons  met  at  the  time  and  place  last 
aforesaid,  and  were  duly  sworn  by  me  as  jurors  aforesaid,  and 
did  then  and  there  find  and  report,  that  said  property  should  be 
disposed  of,  and  that  it  would  not  be  prudent  to  retain  the  same 
in  my  hands  beyond  the.  . .  .day  of. . . .  18. . ;  that  said  summons 
to  said  persons,  with  their  oaths,  finding  and  report,  and  said 
notice  served  on  the  defendant,  are  hereto  annexed,  marked 
"Exhibit  E";  that  thereupon  after  due  notice,  I  proceeded  to  sell 
said  personal  property,  on  the ....  day  of. . . .  18 . . ,  and  that  said 
property  on  said  sale  brought  the  sum  of  $....,  which  was  forth- 
with paid  over  to  the  clerk  of  the  court. 

I  further  certify,  that  on  the. .  .  .day  of. .  . .  18. .,  I  gave  the 
defendant  notice  of  said  attachments  and  levies,  and  also  on  the 
same  day  I  gave  V  F,  who  was  in  possession  of  said  personal  (or 
real)  property,  notice  thereof,  at  the  time  of  the  attachment 
thereof;  and  I  now  return  this  writ,  with  my  doings  in  the 
premises. 

Dated  this ....  day  of . . . .  18 . . 

A  ...  B....,  Sheriff. 


EETUKN   OF  ATTACHMENT.  109 

When  the  return  should  be  made. — The  return  should 

be  made  as  soon  as  the  officer  has  attached  sufficient  property, 
or  all  that  he  can  find;  or  at  least  on  the  first  day  of  the  term  at 
"which  the  defendant  is  notified  to  appear. 

Presumptions:  evidence. — When  the  return  states  that 
the  officer  served  the  writ  by  attaching  the  property,  describing 
•  it,  it  will  be  presumed  that  the  property  attached  was  the  pro- 
perty of  the  debtor,  and  the  omission  to  state  the  ownership  of 
the  property,  will  not  afi"ect  the  levy  if  legally  made,  as  until 
the  contrary  appears,  it  will  be  presumed  that  the  officer  did  his 
duty.     4  G.  Greene,  468. 

May  amend  his  return. — If  the  officer  has  indorsed  upon 
the  writ  a  return  of  no  property  found,,  yet,  if  the  defendant 
subsequently,  and  before  the  return  of  the  writ,  acquires  pro- 
perty, or  if  further  search  discloses  property  belonging  to  him, 
it  is  proper  for  the  officer  to  attach  it;  and  an  indorsement  by 
the  officer  upon  a  writ,  that  there  is  no  property  of  the  defend- 
ant found  within  the  county,  does  not  preclude  his  successor,  to 
whom  the  writ  has  been  delivered,  from  levying  the  attachment 
upon  property  of  the  defendant,  nor  render  his  acts  therein 
irregular.     6  Iowa,  338. 


110  PROCESS   OF   EXECUTION. 


OHAPTEE  XII. 


OF  THE  PROCESS  OF  EXECUTION. 

I.  ITS  PURPOSE  AND  THE  RESPONSIBILITY  OF  THE 

SHERIFF. 

The  execution  is  a  process  of  the  court  issued  to  the  proper 
oflBcer  for  the  purpose  of  executing  the  order  or  judgment  of  the 
court,  and  none  of  the  duties  of  the  sheriff  are  more  responsible 
and  intricate  than  those  -which  frequently  relate  to  the  proper 
service  of  this  writ. 

II.  STATUTORY  PROVISIONS,  AND  HIS  DUTY  THERE- 

UNDER. 

The  Code  provides  as  follows: 

"When  it  may  issue. — Section  3025.  Executions  may  issue  at  any  time  before 
the  judgment  is  barred  by  the  statute  of  hmitations,  and  but  one  execution  shall  be 
in  existence  at  the  same  time. 

Judgments :  orders  enforced  by. — Sec.  3026.  Judgments  or  orders  requiring 
the  payment  of  money,  or  the  delivery  of  the  possession  of  property  are  to  be  enforced 
by  execution.  Obedience  to  those  requiring  the  performance  of  any  other  act,  is  to 
be  coerced  by  attachment  for  contempt. 

From  courts  of  record. — Sec.  3027.  Executions  from  any  court  of  record  may 
issue  into  any  county  which  the  party  ordering  them  may  direct. 

When  issued  and  served  on  Sunday. — Sec  3028.  An  execution  may  be  issued 
and  executed  on  Sunday,  whenever  an  affidavit  shall  be  filed  by  the  plaintiff  or  some 
person  in  his  behalf,  stating  that  he  beheves  he  will  lose  his  judgment  unless  process 
issue  on  that  day. 

Issued  on  demand  of  party  :  duty  of  clerk. — Sec.  3029.  Upon  the  rendition  of 
judgment,  execution  may  be  at  once  issued,  and  shall  be  by  the  clerk  on  the  demand 
of  the  party  entitled  thereto ;  and  upon  its  issuance,  the  clerk  shall  enter  on  the  judg- 
ment docket  the  date  of  its  issuance,  and  to  what  county  and  what  officer  issued,  and 
shall  also  enter  on  said  docket  the  return  of  the  officer  with  the  date  of  the  return, 


STATUTOKT   PROVISIONS — DUTIES   THEKEUNDEE.  Ill 

the  dates  and  amount  of  all  moneys  received  into  or  paid  out  of  the  office  thereon ; 
and  these  entries  shall  be  made  at  the  time  of  the  thing  done. 

Penalty  for  clerk's  failure  of  duty. — Sec.  3030.  The  clerk  willfully  neglecting  or 
refusing  to  perform  any  one  of  the  duties  in  this  chapter  imposed,  shall  be  liable  to  a 
penalty  of  five  hundred  dollars,  and  to  damages  to  the  party  aggrieved,  and  shall  be 
guilty  of  a  misdemeanor  in  office,  and  on  conviction  thereof,  shall  be  removed  from 
office. 

When  issued  to  another  county  what  done. — Sec.  3031.  In  case  execution  is 
issued  to  a  county  other  than  that  in  which  the  judgment  is  rendered,  a  transcript  of 
such  judgment  must  be  filed  in  the  office  of  the  clerk  of  the  district  court  of  such 
county,  who  shall  make  an  entry  thereof  in  the  judgment  docket  of  such  court ;  and 
the  officer  having  such  execution  shall  return  a  copy  thereof,  with  his  return  and 
doings  indorsed  thereon,  to  such  clerk,  who  shall  make  entries  thereof  in  the  same 
manner  and  extent  as  if  such  judgment  had  been  entered  in  and  execution  issued  from 
such  court. 

Return :  how  made  :  money :  how  sent. — Sec.  3032.  Wlien  sent  into  any  coun- 
ty other  than  that  in  which  the  judgment  was  rendered,  return  may  be  made  by  mail. 
But  money  cannot  thus  be  sent  except  by  the  direction  of  the  party  entitled  thereto, 
or  his  attorney. 

General  form  of  execution. — Sec.  3033.  The  execution  must  intelligibly  refer  to 
the  judgment,  stating  the  time  and  place  at  which  it  was  rendered,  the  names  of  the 
parties  to  the  action  as  well  as  to  the  judgment,  its  amount,  and  the  amount  still  to  be 
collected  thereon,  if  for  money ;  and,  if  not  for  money,  it  must  state  what  specific 
act  is  required  to  be  performed.  If  it  be  against  the  property  of  the  judgment  debt- 
or, it  shall  require  the  sheriff  to  satisfy  the  judgment  and  interest  out  of  property  of 
the  debtor  subject  to  execution. 

When  against  representatives. — Sec.  3034.  If  it  be  against  real  or  personal 
property  in  the  hands  of  personal  representatives,  heirs,  devisees,  legatees,  tenants  of 
real  property,  or  trustees,  it  shall  require  the  sheriff  to  satisfy  the  judgment  and  inter- 
est out  of  such  property. 

When  for  delivery  of  possession  of  real  property. — Sec.  3035.  If  it  be  for  the 
delivery  of  the  possession  of  real  or  personal  property,  it  shall  require  the  sheriff  to 
deliver  the  possession  of  the  same,  particularly  describing  it,  to  the  party  entitled 
thereto,  and  may,  at  the  same  time,  require  the  sheriff  to  satisfy  any  costs,  damages, 
or  rents  and  profits,  with  interest,  recovered  by  the  same  judgment  out  of  the  proper- 
ty of  the  party  against  whom  it  was  rendered  subject  to  execution,  and  the  value  of 
the  property  for  which  judgment  was  recovered  to  be  specified  therein  if  a  delivery 
thereof  cannot  be  had,  and  shall  in  that  respect  be  deemed  an  execution  against 
property. 

When  for  performance  of  any  other  act. — Sec.  3036.  When  it  requires  the  per- 
formance of  any  other  act,  a  certified  copy  of  the  judgment  may  be  served  on  the 
person  against  whom  it  is  given,  or  upon  the  person  or  officer  who  is  required  there- 
by, or  by  law,  to  obey  the  same,  and  his  obedience  thereto  enforced. 

Officer  to  receipt  for. — Sec.  3037.  Every  officer  to  whose  hands  an  execution 
may  legally  come  shall  give  a  receipt  therefor,  if  required,  stating  the  hour  when  the 
same  was  received,  and  shall  make  sufficient  return  thereof,  together  with  the  money 
collected,  on  or  before  the  seventieth  day  from  such  delivery. 

What  officer  must  indorse. — Sec,  3038.  The  officer  to  whom  an  execution  is 
legally  issued,  shall  indorse  thereon  the  day  and  hour  when  he  received  it,  and  the  levy, 
sale,  or  other  act  done  by  virtue  thereof,  with  the  date,  and  the  dates  and  amounts  of 


112  PROCESS   OF   EXECUTION. 

any  receipts  or  payment  in  satisfaction  thereof;  the  indorsements  must  be  made  at 
the  time  of  the  receipt  or  act  done. 

PRINCIPAL    AND    SURETY. 

Property  of  principal  first  liable. — Sec.  3039.  When  a  judgment  is  against  a 
principal  and  his  surety,  the  officer  having  the  collection  thereof  shall  exhaust  the 
property  of  the  principal  before  proceeding  to  sell  that  of  the  surety. 

Meaning  of  term  surety. — Sec.  3040.  The  term  "  surety  "  in  the  foregoing  sec- 
tion, shall  embrace  accommodation  indorsers,  stayers,  and  all  other  persons  whose 
liability  on  the  claim  is  posterior  to  that  of  another;  but  the  surety  shall,  if  requested 
by  the  officer,  show  property  of  the  principal  to  entitle  himself  to  the  benefit  of  this 
provision. 

Property  of  surety  liable :  when. — Sec.  3041.  After  exhausting  the  property  of 
the  principal,  the  officer  shall  subject  the  property  of  the  other  parties  in  the  order  of 
their  liability  in  the  execution.  But  the  party  subsequently  liable,  shall,  if  requested 
by  the  officer,  show  property  of  the  party  liable  before  him,  so  as  to  entitle  himself  to 
the  benefit  of  this  provision. 

Judgment  recite  order  of  liability. — Sec.  3042.  But  all  the  parties  will  be  con- 
sidered as  equally  liable  in  all  cases,  unless  the  order  of  liability  is  shown  to  the 
court  and  recited  in  the  judgment,  and  the  clerk  issuing  execution  on  the  judgment 
containing  such  recital  shall  state  the  order  of  liability  in  the  execution. 

LEVY. 

Mode  of;  duty  of  officer. — Sec.  3043.  When  an  execution  is  delivered  to  an  offi- 
cer, he  must  proceed  to  execute  the  same  with  diligence;  if  executed,  an  exact 
description  of  the  property  at  length,  with  the  date  of  the  levy,  shall  be  indorsed 
upon  or  appended  to  the  execution,  and  if  the  writ  was  not  executed,  or  only  execu- 
ted in  part,  the  reason  in  such  case  must  be  stated  in  the  return. 

Sec.  3044.  The  officer  must  execute  the  writ  by  levying  on  the  property  of  the 
judgment  debtor,  collecting  the  things  in  action  by  suit  in  his  own  name,  if  necessary, 
or  by  selling  the  same,  selling  the  other  property  and  paying  to  the  plaintiff  the  pro- 
ceeds, or  so  much  thereof  as  will  satisfy  the  execution. 

What  property  he  shall  take. — Sec.  3045.  The  officer  shall,  in  all  cases,  select 
such  property,  and  in  such  quantities,  as  will  be  likely  to  bring  the  exact  amount 
required  to  be  raised,  as  nearly  as  practicable,  and  having  made  one  levy,  may,  at 
any  time  thereafter,  make  other  levies  if  he  deem  it  necessary.  But  no  writ  of  execu- 
tion shall  be  a  lien  on  personal  property  before  the  actual  levy  thereof. 

Judgments,  bank  bills,  things  in  action. — Sec.  3046.  Judgments,  bank  bills, 
and  other  things  in  action,  may  be  levied  upon  and  sold,  or  .nppropriated  as  herein- 
after provided,  and  assignment  thereof  by  the  officer  shall  have  the  same  effect  as  if 
made  by  the  defendant. 

Persons  indebted  to  defendant  may  pay. — Sec.  3047.  After  the  rendition  of 
judgment,  any  person  indebted  to  the  defendant  in  execution  may  pay  to  the  sheriff 
the  amount  of  such  indebtedness,  or  so  much  thereof  as  is  necessary  to  satisfy  the 
execution,  and  the  sheriff's  receipt  shall  be  a  sufficient  discharge  therefor. 

Public  property  not  liable. — Sec.  3048.  Public  buildings  owned  by  the  state,  or 
any  county,  city,  school  district,  or  other  municipal  corporation,  or  any  other  public 
property  which  is  necessary  and  proper  for  carrying  out  the  general  purpose  for 
which  such  corporation  is  organized,  are  exempt  from  execution.  The  property  of 
a  private  citizen  can  in  no  case  be  levied  on  to  pay  the  debt  of  any  such. 


STATUTORY    PROVISIOSTS DUTIES    THEREUNDER.  113 

Tax  levied  to  pay  corporate  debt. — Sec.  3049.  If  no  property  of  a  municipal 
corporation  against  whicli  execution  has  issued  can  be  found,  or  if  the  judgment 
creditor  elect  not  to  issue  execution  against  such  corporation,  a  tax  must  be  levied 
as  early  as  practicable  to  pay  off  the  judgment.  When  a  tax  has  been  so  levied  and 
any  part  thereof  shall  be  collected,  the  treasurer  of  such  corporation  shall  pay  the 
same  to  the  judgment  creditor,  or  to  the  clerk  of  the  court  in  which  the  judgment 
was  rendered,  in  satisfaction  thereof. 

Stocks  or  intsrests  levied  upon.— Sec.  3050.  Stock  or  interests  owned  by  the 
defendant  in  anv  corporation,  and  also  debts  due  him,  and  property  of  his  in  the 
hands  of  third  persons,  may  be  levied  upon  in  the  same  manner  provided  for  attach- 
ing the  same. 

PROCEEDINGS    BT   GARNISHMENT. 

How  done:  proceedings. — Sec.  3051.  In  proceedings  by  garnishment  on  execu- 
tion, the  garnishee  shall  be  served  as  in  case  of  attachment.  The  plaintiff  may,  also, 
if  the  garnishee  is  called  into  court,  have  a  case  docketed  against  him  without  docket 
fee,  and  upon  his  answer  to  the  officer,  issue  may  be  made  and  notice  thereof  given 
him,  or  issue  may  be  made  on  his  answer  in  court  without  any  notice  theron,  if  made 
at  the  same  term ;  and  in  all  these  and  every  other  particular,  the  proceedings  shall  be 
the  same  as  under  garnishment  on  attachment,  as  near  as  the  nature  of  the  case  will 
allow. 

Not  affected  hy  expiration  of  execution.— Sec.  3052.  Proceedings  by  garnish- 
ment on  execution  shall  not  be  in  any  manner  affected  by  the  expiration  of  the  exe- 
cution or  its  return ;  and  where  parties  thereunder  have  been  garnished,  the  officer 
shall  return  to  the  next  term  thereafter  a  copy  of  the  execution  with  all  his  doings 
thereon,  so  far  as  tlie  garnishments  thereon  are  concerned. 

PARTNERSHIP    PROPERTY. 

Officer  may  take  possession,  inventory,  and  appraise. — Sec.  3053.  When  an 
officer  has  an  execution  against  a  person  who  owns  property  jointly,  in  common,  or 
in  partnership  with  another,  such  officer  may  levy  on  and  take  possession  of  the  pro- 
perty owned  jointly,  in  common,  or  in  partnership,  sufficiently  to  enable  him  to 
appraise  and  inventory  the  same,  and  for  that  purpose  shall  call  to  his  assistance 
three  disinterested  persons,  which  inventory  and  appraisement  shall  be  returned  by 
the  officer  with  the  execution,  and  shall  state  in  his  return  who  claims  to  own  the 
property. 

Lien  enforced  by  equitable  proceeding.— Sec.  3054.  The  plaintiff  shall,  from 
the  time  such  property  is  so  levied  on,  have  a  lien  on  the  interest  of  the  defendant 
therein,  and  may  commence  an  action  by  equitable  proceedings  to  ascertain  the 
nature  and  extent  of  such  interest,  and  to  enforce  the  hen;  and,  if  deemed  necessary 
or  proper,  the  court  or  judge  may  appoint  a  receiver  under  the  circumstances  pro- 
vided in  chapter  twelve  of  title  seventeen  of  this  code. 

INDEMNIFYING    BOND. 

May  be  required,  when.— Sec.  SCiS.  An  officer  is  bound  to  levy  an  execution 
on  any  personal  properly  in  the  possession  of,  or  that  he  has  reason  to  believe  belongs 
to  the  defendant,  or  on  whicJi  the  plaintiff  directs  him  to  levy,  unless  he  lias  received 
notice  in  writing  from  some  other  person,  his  agent,  or  attorney,  that  such  property 
belongs  to  him  ;  or,  if  after  levy  he  receives  such  notice,  such  officer  may  release  the 
property  unless  a  bond  is  given  as  provided  in  the  next  section  ;  but  the  officer  siiall 
be  protected  from  all  liability  by  reason  of  such  levy  until  ho  receives  such  written 
notice. 

8 


114  PBOCESS    OF   EXECUTION. 

Terms  and  conditions  of. — Sf:c.  305G.  When  the  officer  receives  such  notice 
he  may  forthwith  give  the  plaintiff,  his  agent,  or  attorney,  notice  that  an  indemnify- 
ing bond-is  required.  Bond  may  thereupon  be  given  by  or  for  the  plaintiff,  with  one 
or  more  sufficient  sureties,  to  be  approved  by  the  officer,  to  the  effect  that  the  obli- 
gators will  indemnify  him  against  the  damages  which  he  may  sustain  in  consequence 
of  the  seizure  or  sale  of  the  property,  and  will  pay  to  any  claimant  thereof  the  dam- 
ages he  may  sustain  in  consequence  of  the  seizure  or  sale,  and  will  warrant  to  any 
purchaser  of  the  property  such  estate  or  interest  therein  as  is  sold  ;  and  thereupon 
the  officer  shall  proceed  to  subject  the  property  to  the  execution,  and  shall  return 
the  indemnifying  bond  to  the  district  court  of  the  county  in  which  the  levy  is  made. 

If  not  given,  levy  discharged. — Sec.  3057.  If  such  bond  is  not  given,  the  officer 
may  refuse  to  levy,  or  if  he  has  done  so,  and  the  bond  is  not  given  in  a  reasonable 
time  after  it  is  required  by  the  officer,  he  may  restore  the  property  to  the  person 
from  whose  possession  it  was  taken,  and  the  levy  shall  stand  discharged. 

Officer  protected  if  bond  good  when  taken. — Sec.  3058.  The  claimant  or  pur- 
chaser of  any  property,  for  the  seizure  or  sale  of  which  an  indemnifying  bond  has 
been  taken  and  returned  by  the  officer,  shall  be  barred  of  any  action  against  the 
officer  levying  on  the  property  if  the  surety  on  the  bond  was  good  when  it  was  taken. 
Any  such  claimant  or  purchaser  may  maintain  an  action  upon  the  bond,  and  recover 
such  damages  as  he  may  be  entitled  to. 

Application  of  proceeds  of  such  property. — Sec.  3059.  Where  property,  for  the 
sale  of  which  the  officer  is  indemnified,  sells  for  more  than  enough  to  satisfy  the  exe- 
cution under  which  it  was  taken,  the  surplus  shall  be  paid  into  the  court  to  which  the 
indemnifying  bond  is  directed  to  be  returned.  The  court  may  order  such  disposition 
or  payment  of  the  money  to  be  made,  temporarily  or  absolutely,  as  may  be  proper 
in  respect  to  the  rights  of  the  parties  interested. 

Executions  issued  by  justices. — Sec.  3060.  The  provisions  of  the  preceding 
sections  as  bonds,  shall  apply  to  proceedings  upon  executions  issued  by  justices  of 
the  peace.  Indemnifying  bonds  shall  be  returned  in  such  cases  with  the  execution 
under  which  they  are  taken. 

General  rules  relating  to  levy  on  attaclinients,  apply 

to  executions. — The  general  directions  heretofore  given  in  the 
chapter  on  Attachiijents  in  reference  to  the  levy,  will  apply  as 
well  to  the  levy  under  an  execution,  and  reference  may  be  had 
thereto,  to  show  the  mode  and  effect  of  a  levy,  and  the  rights 
and  duties  of  the  officer  thereon. 

His  duty  on  receiving  an  execution- — On  receiving  an 

execution  the  officer  should  proceed  at  once  to  execute  it;  he 
should  give  a  receipt  for  it,  if  required,  stating  the  hour  and  day 
when  it  was  received,  and  make  sufficient  return  thereof  with  the 
money  collected  thereon  within  seventy  days  from  such  receipt; 
he  should  indorse  on  the  writ  the  day  and  hour  when  received, 
and  the  levy,  sale,  and  every  other  act  done  by  virtue  thereof, 
with  the  date  and  amounts  of  receipts  or  payments  in  satisfaction 
thereof,  and  the  indorsements  must  be  made  at  the  time  of  the 
receipt  or  act  done. 


STATUTORY    TROVISIONS DUTIES   THEREUNDER.  115 

When  the  execution  becomes  a  lien. — The  execution  is  a 

lien  on  personal  property  only  after  an  actual  levy,  and  is  suffi- 
cient justification  to  levy,  provided  it  is  regular  on  its  face.  18 
Iowa,  380,  474;  16  Iowa,  234. 

Only  one  at  a  time. — Only  one  execution  can  be  in  existence 
at  the  same  time.  If  one  has  issued,  it  must  be  returned  before 
a  second  one  can  issue;  and  under  the  provisions  of  the  Rev. 
1860,  it  was  held  that  it  was  necessary  to  return  an  execution 
after  property  had  been  levied  upon  and  not  sold  for  any  cause, 
and  the  execution  was  not  satisfied,  before  a  second  execution, 
commonly  called  an  alias^  could  properly  issue;  and  that  a  special 
execution,  commonly  called  a  venditioni  exponas^  should  issue  in 
such  a  ease  to  complete  the  sale.  But  a  sale  in  such  a  case  under 
an  alias,  though  irregular,  would  not  render  it  absolutely  void. 
13  Iowa,  202. 

This  has  been  changed  by  the  Code,  which  provides,  in  such 
cases  for  another  execution,  and  if  the  property  levied  upon  under 
the  former  execution  does  not  satisfy  the  second  one,  other  prop- 
erty may  be  taken  to  satisfy  the  same.     Code,  Sec.  3086. 

Omission  to  levy. — If  the  sheriff  omits  to  levy  until  the 
return  day  is  past,  the  execution  is  dead,  and  he  will  be  liable  as 
a  trespasser  if  he  levy  after  that  time.     13  John.,  255. 

Several  executions  in  his  hands. — If  there  are  several 

executions  in  his  hands  at  the  same  time,  in  different  cases,  they 
should  be  executed  in  the  order  in  which  they  were  received, 
and  ordinarily  after  a  valid  levy  on  property  sufficient  to  satisfy 
an  execution,  neither  the  plaintiff  nor  the  sheriff  can  withdraw 
the  levy  and  discharge  the  property,  or  treat  it  as  a  nullity,  and 
sue  out  a  second  writ  to  be  levied  on  additional  property. 

Plaintiff  may  order  a  return  in  certain  cases. — But 

under  certain  circumstances,  the  plaintiff  or  his  assignees,  may 
order  a  return  after  the  levy  and  before  sale;  as  when  it  is  dis- 
covered that  the  proceedings  under  which  it  issued  were  illegal 
or  irregular,  or  where  the  sale,  if  made,  would  be  nugaUjry,  or 
where  a  compromise  is  made  with  the  defendant  whereby  the 
debt  is  liquidated,  or  the  time  of  its  payment  extended,  or  where 
notice  of   a  claim  thereto  is  made,  and    an   indemnifying  bond 


116  PROCESS   OF   EXECUTION. 

required   and  refused.     22  Wend.,  569;    10  Iowa,    325;    Code, 
Sec.  3063. 
Liability  where  sufficient  property  levied  on  .—If  the 

sheriff  levy  on  sufficient  property  to  satisfy  the  judgment,  the 
officer  becomes  liable  to  the  plaintiff  for  the  debt,  unless  he  cloes 
his  duty  according  to  the  requirements  of  the  law,  or  is  released 
by  the  plaintiff.     2  G.  Greene,  208. 

Officer  cannot  discharge  an  execution  .—The  officer  can- 
not discharge  an  execution  without  payment,  and  a  note  taken 
by  him  instead  of  money,  is  no  satisfaction  of  the  execution, 
though  he  return  the  same  satisfied.  But  the  plaintiff  might  rat- 
ify the  transaction,  and  sue  the  sheriff  for  the  amount.  1  ('ow., 
46;  4  Cow.,  553;  6  Cow.,  465.  Neither  can  the  shciff  with 
his  own  money  pay  the  plaintiff  the  amount  of  the  judgment,  and 
by  arrangement  with  the  defendant,  retain  the  execution  as  secu- 
rity for  the  payment.  The  execution  in  such  a  case  would  not 
protect  the  officer,  and  the  defendant  could  maintain  trespass  or 
replevin  for  goods  subsequently  taken  under  it.  The  sole  object 
of  an  execution  is  to  raise  money  to  satisfy  the  judgment,  if  the 
judgment  is  for  money;  and  that  object  being  attained  the  power 
conferred  by  the  writ  is  spent,  and  the  officer  is  not  permitted  to 
use  it  in  enforcing  a  bargain  with  the  defendant.     15  .Tohn.,  443. 

Property   wrongfully  or  fraudulently    obtained. — 

Property  tortiously  severed  from  the  freehold,  and  which  would 
otherwise  be  exempt,  cannot  properly  be  levied  upon.  11  Iowa, 
533.  Nor  is  property,  the  possession  of  which  has  been  obtained 
fraudulently,  subject  to  levy. 

AVhen  money  is  made. — Section  3044  provides,  that  when 
money  is  made  under  an  execution,  the  sheriff  should  pay  the 
same  to  the  plaintiff,  or  so  much  thereof  as  will  satisfy  the 
execution. 

This  might  appear  inconsistent  with  Section  3037,  which  pro- 
vides, among  other  things,  that  the  officer  "  shall  make  sufficient 
return  thereof,  together  with  the  money  collected,  on  or  before 
the  seventieth  day  from  such  delivery." 

The  proper  practice  Avould  appear  to  be,  for  the  officer  to  pay 
over  to  the  plaintiff  the  money  he  is  entitled  to  receive,  and  take 


INDEMNIFYING    BOND.  117 

his  receipt  therefor,  and  return  the  same  with  his  writ;  but  if  the 
amount  due  the  plaintiif  in  the  execution  is  not  paid  over  to  him, 
to  return  the  money  made  with  the  execution  to  the  clerk. 

Any  surjDlus,  after  satisfying  the  execution  and  costs,  should  be 
paid  to  the  defendant,  unless  there  are  other  executions  in  his 
hands  on  which  the  same  should  be  applied. 

TIL     INDEMNIFYING  BOND. 
May  be  required  when. — The  statute  further  provides: 

Section  3055.  An  officer  is  bound  to  levy  an  execution  on  any  personal  property 
in  the  possession  of,  or  that  he  has  reason  to  believe  belongs  to  the  defendant,  or  on 
which  the  plaintiff  directs  him  to  levy,  unless  he  has  received  notice  in  writing  from 
some  other  person  or  his  agent  or  attorney,  that  such  property  belongs  to  him  ;  or  if 
after  levy  he  receives  such  notice,  such  of&cer  may  release  the  property,  unless  a  bond 
is  given  as  provided  in  the  next  section ;  but  the  officer  shall  be  protected  from  all 
liability  by  reason  of  such  le\'y  until  he  receives  such  notice. 

To  give  plaintiff  notice :  terms  and  conditions. — Sec.  3056.  Wlien  the  officer 
receives  such  notice,  he  may  forthwith  give  the  plaintiff,  his  agent  or  attorney,  notice 
that  an  indemnifying  bond  is  required.  Bond  may  thereupon  be  given  by  or  for  the 
plaintiff,  with  one  or  more  sufficient  sureties,  approved  by  the  officer,  to  the  effect,  that 
the  obligors  will  indemnify  him  against  the  damages  which  he  may  sustain  in  conse- 
quence of  the  seizure  or  sale  of  the  property,  and  will  pay  to  any  claimant  thereof 
the  damages  he  may  sustain  in  consequence  of  the  seizure,  or  sale,  and  will  warrant 
to  any  purchaser  of  the  property  such  estate  or  interest  as  is  sold;  and  thereupon 
the  officer  shall  proceed  to  subject  the  property  to  the  execution,  and  shall  return  the 
indemnifying  bond  to  the  district  court  of  the  county  in  which  the  levy  is  made. 

If  not  given,  levy  discharged. — Sec.  3057.  If  such  bond  is  not  given  the  officer 
may  refiise  to  le\y,  or  if  he  has  done  so  and  the  bond  is  not  given  in  a  reasonable 
time  after  it  is  required  by  the  officer,  he  may  restore  the  property  to  the  possession 
of  the  person  from  whose  possession  the  property  was  taken,  and  the  levy  shall  stand 
discharged. 

Officer  protected  if  bond  good  when  taken. — Sec  3058.  The  claimant  or  pur- 
chaser of  any  property  for  the  seizure  or  sale  of  which  an  indemnifying  bond  has 
been  taken  and  returned  by  the  officer,  shall  be  barred  of  any  action  against  the  offi- 
cer levying  on  the  property,  if  the  surety  on  the  bond  was  good  when  it  was  taken. 
Any  such  claimant  or  purchaser  may  maintain  an  action  upon  the  bond,  and  recover 
such  damages  as  he  may  be  entitled  to. 

Application  of  proceeds  of  such  property. — Sec  3059.  Where  property  for  the 
sale  of  which  the  officer  is  indemnified,  sells  for  more  than  enough  to  satisfy  the  exe- 
cution under  which  it  was  taken,  the  surplus  shall  be  paid  into  the  court  to  which 
the  indemnifying  bond  is  directed  to  be  returned.  The  court  may  order  such  dispo- 
sition or  payment  of  the  money  to  be  made,  temporarily  or  absolutely,  as  may  be 
proper  in  respect  to  the  rights  of  the  parties  interested. 

These  provisions  to  apply  to  justices. — Sec.  3000.  The  provisions  of  the  prece- 
ding sections  .as  to  bonds,  shall  apply  to  proceedings  upon  executions  issued  by  jus- 
tices of  the  peace.  Indemnifying  Ijonds  shall  be  returned  in  such  cases,  with  the 
execution  under  which  they  arc  taken. 


118  PROCESS   OF   EXECUTION. 

The  above  provisions  obscure. — The  above  provisions  of 

the  Code  are  in  some  respects  quite  obscure,  and  have  materially 
changed  the  former  law  relating  to  indemnifying  bonds. 

Probable  construction. — The  construction  given  to  these 
provisions,  will  undoubtedly  be  that  the  officer  is  bound  to  levy 
on  any  property  in  the  possession  of  the  defendant,  or  on  any 
property  not  in  his  possession  which  he  has  reason  to  believe 
belongs  to  the  defendant,  and  which  in  either  case  is  not  exempt 
from  execution,  and  that  he  is  required  to  levy  on  any  property 
on  which  the  plaintiff  directs  him  so  to  do,  and  which  is  not  exempt 
from  execution,  unless  he  shall  receive  notice  in  writing  from 
some  other  person,  his  agent  or  attorney,  that  said  property 
belongs  to  him;  and  that  the  officer  will  be  protected  as  to  the 
claims  of  third  parties,  until  he  receives  such  notice. 

^   INDEMNIFYING  BOND. 
No.  SO. 

In  the ....  Court  of  the  State  of  Iowa,  in  and  for .  county. 

A....  B  ...,  Plaintiff, 


C . . . .  D . . . . ,  Defendant. 

Know  all  men  by  these  jy^esents,  that  Ave,  A  Bas  principal,  and 
E  F  as  surety,  are  held  and  firmly  bound  unto  G  H,  sheriff  of  said 
county,  in  the' sum  cf....[here  insert  double  the  value  of  the 
property,]  dollars,  for  the  payment  of  which  well  and  truly  to  be 
made  we  bind  ourselves  firmly  by  these  presents. 

The  condition  of  this  obligation  is  such,  that  whereas  the  said 
G  H,  sheriff  as  aforesaid,  by  virtue  of  an  execution  to  him  duly 
issued  and  directed  in  the  above  entitled  cause,  against  the  goods 
and  chattels,  lands  and  tenements  of  the  said  defendant,  is  about 
to  levy  said  execution  upon  (or  has  levied  the  same  upon)  the  fol- 
lowing described  property,  to-wit: 

[Here  describe  the  property;]  and  whereas  the  said  G  H  has 
received  a  notice  in  writing  from  I  J,  (or  his  agent  or  attorney,) 
that  said  property  belongs  to  him,  and  the  said  sheriff  has  given 
notice  thereof  to  said  plaintiff,  and  that  an  indemnifying  bond  is 
required  herein,  of  said  plaintiff. 

Now  therefore,  if  said  obligors  shall  and  will  indemnify  the 
said  sheriff  against  any  damage  which  he  may  sustain  by  reason  of 
the  seizure  and  sale  of  said  property,  and  shall  paj^  to  any  claim- 
ant thereof  the  damages  he  may  sustain  by  reason  of  the  seizure 
and  sale  of  said  property,  and  shall  pay  to  any  claimant  thereof 
the  damages  he  may  sustain  in  consequence  of  the  seizure  and 
sale    under  said  execution,   and   will   warrant  to  any  purchaser 


STAT   OF   EXECUTION — PROPERTY   EXEMPT.  119 

of  the  property  on  said  sale,  such  estate  or  interest  therein  as  is 
sold,  then  this  obligation  to  be  void,  otherwise  in  full  force  and 
virtue. 

Dated  this. . . .  day  of . . . .  18 . .  .        A . . . .  B . . . . ,  Princ/'pal. 

E F ,  Surety. 

APPROVAL  OF  BOND. 

No.  SI. 

I  hereby  approve  the  within  bond  and  the  surety  therein. 
Dated  this ....  day  of. . . .  18 . . . 

G....  H....,  Sheriff. 

These  facts  should  be  returned. — These  facts  should,  of 

course,  be  set  forth  in  the  officer's  return,  and  if  a  bond  is  given, 
it  should  also  be  returned  to  the  clerk  of  the  court,  and  the  offi- 
cer should  thereupon  proceed  to  sell  the  property  as  in  other 
cases,  and  the  surplus,  if  any  remaining  after  satisfying  the  exe- 
cution, should  be  paid  into  the  court  where  the  bond  is  required 
to  be  returned. 

IV.     STAY  OF  EXECUTION. 

Statutory  provisions. — The  provisions  of  the  Code  in  ref- 
erence to  a  stay  of  execution,  so  far  as  the  same  relate  to  the  duty 
of  the  sheriff,  are  as  follows: 

Execution  recalled. — Section  SOfio.  When  the  surety  is  entered  after  execution 
issued,  the  clerk  sliall  immediately  notify  the  sheriff  of  the  stay,  and  he  shall  forthwith 
return  the  execution  with  his  doings  thereon. 

Property  levied  on  released. — Sec.  .S066.  All  property  levied  on  before  stay  of 
execution,  and  all  written  undertakings  for  the  delivery  of  personal  property  to  the 
sheriff,  shall  be  relinquished  by  the  officer  upon  stay  of  execution  being  entered. 

Execution  against:  form  of.— Sec.  3067.  At  the  expiration  of  the  stay,  the  clerk 
shall  issue  a  joint  execution  against  the  property  of  all  the  judgment  debtors  and 
sureties,  describing  them  as  debtors  or  sureties  therein. 

V.    PROPERTY  EXEMPT  FROM  EXECUTION. 

Provisions  of  the  statute. — Beside  the  provisions  of  the 
Code  exempting  a  homestead,  it  contains  the  following  provisions 
in  reference  to  exemption  from  execution: 

Property  enumerated.— Section  3072.  If  the  debtor  is  a  resident  of  this  state 
and  is  ihc  head  of  a  family,  he  may  hold  exempt  from  execution  the  following  prop- 
erty:  All  wearing  apparel  of  himself  and  family  kept  for  actual  use  and  suitable  to 
their  condition,  and  the  trunks  or  other  receptacles  necessary  to  contain  the  same; 


120  PEOCESS   OF   EXECUTION. 

one  musket  or  rifle  and  shot  gun  ;  all  jirivate  libraries,  family  bibles,  portraits,  pictures, 
musical  instruments,  and  paintings,  not  kept  for  the  purpose  of  sale;  a  seat  or  pew 
occupied  by  the  debtor  or  his  family  in  any  house  of  public  worship;  an  interest  in  a 
public  or  private  burying  ground,  not  exceeding  one  acre  for  any  defendant ;  two 
cows  and  calf;  one  horse,  unless  a  horse  is  exempt  as  herein  after  provided ;  fifty  sheep 
and  the  wool  [therefrom  and  the  materials  manufactured  from  such  wool.  Ch.  42, 
Acts  15  Gen.  A.,  p. .32;]  six  stands  of  bees;  five  hogs,  and  all  pigs  under  six  mon  hs; 
the  necessary  food  for  all  animals  exempt  from  execution,  for  six  months;  all  (lax 
raised  by  the  defendant  on  not  exceeding  one  acre  of  ground  and  the  manufactures 
therefrom ;  one  bedstead  and  the  necessary  bedding  for  every  two  in  the  family ;  all 
cloth  manufactured  by  the  defendant,  not  exceeding  one  hundred  yards  in  quantity ; 
household  and  kitchen  furniture,  not  exceeding  two  hundred  dollars  in  value ;  all 
spinning  wheels  and  looms  ;  one  sewing  machine  and  other  instruments  of  domestic 
labor  kept  for  actual  use;  the  necessary  provisions  and  fuel  for  the  use  of  the  family 
for  six  months ;  the  proper  tools,  instruments,  or  books  of  the  debtor,  if  a  farmer, 
mechanic,  surveyor,  clergyman,  lawyer,  physician,  teacher,  or  professor  ;  the  horse,  or 
the  team,  consisting  of  not  more  than  two  horses  or  mules,  or  two  yoke  of  cattle,  and 
the  wagon  or  other  vehicle,  with  the  proper  harness  or  tackle,  by  the  use  of  which  the 
debtor,  if  a  physican,  public  officer,  farmer,  teamster,  or  other  laborer  habitually 
earns  his  living ;  and  to  the  debtor,  if  a  printer,  there  shall  also  be  exempt  a  printing 
press  and  the  types,  furniture,  and  material  necessary  for  the  use  of  such  printing 
press  and  a  newspaper  office  connected  therewith,  not  to  exceed  in  all  the  value  of 
twelve  hundred  dollars. 

Family  defined. — Sec.  3073.  The  word  "  family,"  as  used  in  the  last  section, 
does  not  include  strangers  or  boarders  lodging  with  the  family. 

Personal  earnings. — Sec.  3074.  The  earnings  of  such  debtor  for  his  personal 
services,  or  those  of  his  family,  at  any  time  within  ninety  daj's  next  preceding  the 
levy,  are  also  exempt  from  execution  and  attachment. 

TInmarri3d  persons. — Sec.  3075.  There  shall  be  exempt  to  an  unmarried  person 
not  the  head  of  a  family,  and  to  non-residents,  their  own  ordinary  wearing  apparel 
and  trunk  necessary  to  contain  the  same. 

Persons  wlio  have  started  to  leave  the  State. — Sec.  3076.  Where  the  debtor, 
if  the  head  of  a  family,  has  started  to  leave  this  state,  he  shall  have  exempt  onlv  the 
ordinary  wearing  apparel  of  himself  and  family,  and  such  other  property,  in  addition, 
as  he  may  select,  in  all  not  exceeding  seventy-five  dollars  in  value ;  which  property 
shall  be  selected  by  the  debtor  and  appraised  according  to  the  provisions  of  section 
two  thousand  nine  hundred  and  ninety-seven  of  chapter  one  of  this  title,  but  any 
person  coming  into  this  state  with  the  intention  of  remaining,  shall  be  considered  a 
resident  within  the  meaning  of  this  chapter. 

Purchase  money. — Sec.  3077.  None  of  the  exemptions  prescribed  in  this  chapter 
shall  be  allowed  against  an  execution  issued  for  the  purchase  money  of  property 
claimed  to  be  exempt,  and  on  which  such  execution  is  levied. 

Absconding  debtor. — Sec.  3078.  Where  a  debtor  absconds  and  leaves  his  family, 
such  property  shall  be  exempt  in  the  hands  of  the  wife  and  children,  of  either  of 
them. 

Liberal    coiistriietioii   of  the    statutes. — The    statute 

granting  exemptions  require  a  liberal  construction  in  order  to 
carry  out  the  benevolent  intention  of  the  legislature.  Yet  par- 
ties must  bring   themselves  vpithin  the  .spirit  of  the   provisions 


PKOPEKTY    EXEMPT    FKOM    EXECUTION.  121 

before  they  can   claim   exemptions   under   them.     1  Iowa,  435  j 
22  Iowa,  137. 

Who  is  not  the  head  of  <1  fcamily.— An  unmarried  man 
■who  works  a  farm  on  shares  with  his  brother,  the  brother's  wife 
keeping  house  for  liim,  but  he  having  the  supervision  of  the 
house,  and  procuring  and  furnishing  the  necessaries  for  house 
keeping  and  living,  is  not  the  head  of  a  family  within  the  mean- 
ing of  the  exemption  act.     11  Iowa,  226. 

Habitual  use  of  team:  what  is. — If  a  person  abandon 
one  employment  and  procures  a  team,  or  a  part  of  a  team 
(intending  to  complete  it),  for  the  purpose  of  using  the  same  in 
good  faith,  to  earn  for  himself  a  livelihood,  that  is  such  an 
habitual  use  of  the  team  in  contemplation  of  the  statute  as  to 
exempt  the  same  from  levy,  whether  the  party  claiming  the 
benefit  of  the  law,  has  an  opportunity  of  using  the  property 
much  or  little.  He  must,  in  such  a  case,  make  a  beginning,  and 
if  his  new  character  as  a  teamster  is  shown,  the  property  which 
he  honestly  intends  to  use  in  that  capacity  to  earn  for  himself  a 
living,  should  be  as  effectually  shielded  from  levy  and  sale  dur- 
ing that  period,  as  if  he  had  used  it  for  a  whole  year.  13  Iowa, 
122. 

The  debtor  may  dispose  of  exempt  property. — A  per- 
son owning  exempt  property,  has  a  right  to  dispose  of  the  same 
by  sale,  and  if  he  attempts  to  do  so,  but  before  the  sale  is  made 
effectual  in  law,  it  is  levied  upon,  he  will  not  thereby  lose  his 
rights  under  the  exemption  law,  but  may  insist  on  the  same.  13 
Iowa,  122. 

No  waiver  of  exemi)tion  rights . — A  waiver  of  exemp- 
tion laws,  contained  in  a  promissory  note,  will  not,  when  judg- 
ment is  obtained  on  the  note,  entitle  the  plaintiff  to  have  an 
execution  levied  on  the  property  exempt  from  execution.  20 
Iowa,  376. 

Exemption  of  earnings. — The  statute  exempting  from  exe- 
cution the  earnings  of  a  debtor  for  his  personal  services  and  those 
of  his  family,  for  ninety  days  preceding  the  levy,  does  not 
authorize  the  holding  of  the  earnings   subsequently  accruing  by 


122  PEOCESS    OF    EXECUTION. 

garnishing  the  employer  of  the  debtor.  In  such  a  case  the 
employer  is  not  liable  under  garnishment,  unless  at  some  subse- 
quent time,  there  should  be  due  from  such  employer  to  the  debtor 
an  indebtedness  for  more  than  ninety  days'  labor.     22  Iowa,  137. 

Turning*  out  exempt  property. — If  the  debtor  voluntarily 
surrender,  or  turn  out  exempt  property  to  the  officer,  this  would 
be  a  waiver  of  his  exemption  rights  thereto,  and  he  would  be 
estopped  thereby  from  afterward  asserting  such  claim.  30  Iowa, 
574. 

Personal  property  in  the  li.ands  of  widow  exempt. — 

The  Code  further  provides  in  reference  to  the  estate  of  deceased 
persons  as  follows: 

Section  2371.  When  the  deceased  leaves  a  widow,  all  property  which  in  his 
hands  as  the  head  of  a  family  would  be  exempt  from  execution,  after  being  invento- 
ried and  appraised,  shall  be  set  apart  to  her  and  be  exempt  in  her  hands  as  in  the 
hands  of  the  decedent. 

Homestead  exemption. — To  enable  the  officer  to  fully 
understand  his  duty,  it  is  deemed  advisable  to  set  forth  the  home- 
stead laws  in  full,  which  are  as  follows: 

Exempt. — Section  1988.  Where  there  is  no  special  declaration  of  the  statute  to 
the  contrary,  the  homestead  of  every  family  whether  owned  by  the  husband  or  wife, 
is  exempt  from  judicial  sale. 

Head  of  family  defined. — Sec.  1989.  A  widow  or  widower,  though  without 
children,  shall  be  deemed  a  family  while  continuing  to  occupy  the  house  used  as 
such  at  the  time  of  the  death  of  the  husband  or  wife. 

Conveyance  of. — Sec  1990.  A  conveyance  or  encumbrance  by  the  owner  is  of 
no  validity  unless  the  husband  and  wife,  if  the  owner  is  married,  concur  in  and  siga 
the  same  joint  instrument. 

Liable  for  taxes. — Sec  1991.  The  homestead  is  liable  for  taxes  accruing  thereon, 
and,  if  platted  as  hereinafter  directed,  is  liable  only  for  such  taxes,  and  subject  to 
mechanic's  liens  for  work,  labor,  or  material,  done  or  furnished  exclusively  for  the 
improvement  of  the  same,  and  the  whole  or  a  sufficient  portion  thereof  may  be  sold 
to  pay  the  same. 

For  debts  contracted  previous  to  purchase. — Sec.  1992.  The  homestead  may 
be  sold  on  execution  for  debts  contracted  prior  to  the  purchase  thereof,  but  it  shall 
not  in  such  case  be  sold  except  to  supply  the  deficiency  remaining  after  exhausting 
the  other  property  of  the  debtor  liable  to  execution. 

When  contract  stipulates  it  may  be  sold.- -Sec  1993.  Tlie  homestead  may  be 
sold  for  debts  created  by  written  contract,  executed  by  the  persons  having  the  power 
to  convey  and  expressly  stipulating  that  the  homestead  is  liable  therefor,  but  it  shall 
not  in  such  case  be  sold  except  to  supply  the  deficiency  remaining  after  exhausting 
the  other  property  pledged  for  the  payment  of  the  debt  in  the  same  written  contract. 
•   Extent  of. — Sec  1994.    The  homestead  must  embrace  the  house  used  as  a  home 


PROPERTY  EXEMPT  PROM  EXECUTION.  123 

by  the  owner  thereof,  and  if  he  has  two  or  more  houses  thus  used  by  him  at  differ- 
ent times  and  places,  he  may  select  which  he  will  retain  as  his  homestead. 

Sec.  1995.  It  may  contain  one  or  more  lots  or  tracts  of  land,  with  the  buildings 
thereon,  and  other  appurtenances,  subject  to  the  limitations  contained  in  the  next 
section,  but  must  in  no  case  embrace  different  lots  and  tracts  unless  they  are  contigu- 
ous, or  unless  they  are  habitually  and  in  good  faith  used  as  part  of  the  same  home- 
stead. 

Sec.  1996.  If  within  a  town  plat  it  must  not  exceed  one-half  an  acre  in  extent, 
and  if  not  within  a  town  plat  it  must  not  embrace  in  the  aggregate  more  than  forty 
acres.  But  if,  when  thus  limited,  in  either  case  its  value  is  less  than  five  hundred 
dollars,  it  may  be  enlarged  till  its  value  reaches  that  amoimt. 

Sec.  1997.  It  must  not  embrace  more  than  one  dwelling  house,  or  any  other 
buildings  except  such  as  are  properly  appurtenant  to  the  homestead  as  such ;  but 
a  shop  or  other  building  situated  thereon,  and  really  used  and  occupied  by  the 
owner  in  the  prosecution  of  his  own  ordinary  business,  and  not  exceeding  three  hun- 
dred dollars  in  value,  may  be  deemed  appurtenant  to  such  homestead. 

Who  may  select,  and  have  platted  and  recorded. — Sec.  1998.  The  owner,  or 
the  husband  or  wife,  may  select  the  homestead,  and  cause  it  to  be  marked  out, 
platted,  and  recorded,  as  provided  in  the  next  section.  A  failure  in  this  respect  does 
not  leave  the  homestead  liable,  but  the  officer  having  an  e.xecution  against  the  prop- 
erty of  such  a  defendant,  may  cause  the  homestead  to  be  marked  off,  platted,  and 
recorded,  and  may  add  the  expense  thence  arising  to  the  amount  thus  embraced  in 
his  execution. 

Sec.  1999.  The  homstead  shall  be  marked  off  by  fixed  and  visible  monuments, 
and  in  giving  the  description  thereof,  the  direction  and  distance  of  the  starting  point 
from  some  corner  of  the  dwelling  house  shall  be  stated.  The  description  and  plat 
shall  then  be  recorded  by  the  recorder  in  a  book  to  be  called  the  "  homestead  book," 
which  shall  be  provided  with  a  proper  index. 

May  be  changed. — Sec.  2000.  The  owner  may,  from  time  to  time,  change  the 
limits  of  the  homestead  by  changing  the  metes  and  bounds,  as  well  as  the  record  of 
the  plat  and  description,  or  may  change  it  entirely,  but  such  changes  shall  not  preju- 
dice conveyances  or  liens  made  or  created  previously  thereto,  and  no  such  change  of 
the  entire  homestead,  made  without  the  concurrence  of  the  husband  or  wife,  shall 
affect  his  or  her  right,  or  those  of  the  children. 

New  homestead  exempt. — Sec.  2001.  The  new  homestead,  to  the  extent  in  value 
of  the  old,  is  exempt  from  execution  in  all  cases  where  the  old  or  former  homestead 
would  have  been  exempt,  but  in  no  other,  nor  in  any  greater  degree. 

Disagreement:  how  settled. — Sec.  2002.  When  a  disagreement  takes  place 
between  the  owner  and  any  person  adversely  interested,  as  to  whether  any  land  or 
buildings  are  properly  a  part  of  the  homestead,  the  sheriff  shall,  at  the  request  of 
either  party,  summon  nine  disinterested  persons  having  the  qualification  of  jurors. 
The  parties  then,  commencing  with  the  owner  of  the  homestead,  shall  in  turn  strike 
off  one  juror  each  and  sloall  continue  to  do  so  until  only  three  of  the  number  remain. 
These  shall  then  proceed  as  referees  to  examine  and  ascertain  all  the  facts  of  the  case, 
and  shall  report  the  same  with  their  opinion  thereon  to  the  next  term  of  the  court 
from  which  the  execution  or  other  process  may  have  issued. 

Sec.  2003.  If  either  party  fail  to  strike  off  jurors  in  the  manner  directed  in  the  last 
section,  the  sheriff  may  strike  off  such  jurors. 

Sec.  2004.  The  court  may  also,  in  its  discretion,  refer  the  whole  matter,  or  any 
part,  of  it,  back  to  the  same  referees,  or  to  others  to  be  selected  in  the  same  manner. 


124  PROCESS   OF   EXECUTION. 

or  as  the  parties  otherwise  agree,  giving  them  directions  as  to  the  report  that  is 
required  of  them. 

Sec.  2005.  When  the  court  is  sufficiently  possessed  of  the  facts  of  the  case,  it 
shall  make  its  decision,  and  may,  if  expedient,  direct  the  homestead  to  be  marked  off 
anew,  or  a  new  plat  and  description  to  be  made  and  recorded,  and  may  take  any 
farther  step  in  the  premises  which,  in  its  discretion,  it  may  deem  proper  for  attaining 
the  objects  of  this  statute.  It  shall  also  award  costs  as  nearly  as  may  be  in  accord- 
ance with  the  practice  obser\'ed  in  other  cases. 

Change  of  ciroumstances. — Sec.  2006.  The  extent  or  appurtenances  of  the 
homestead  as  thus  established,  are  liable  to  be  called  in  question  in  like  manner, 
whenever  a  change  in  value  or  circumstances  will  justify  such  new  proceeding. 

Survivor  to  occupy. — Sec.  2007.  Upon  the  death  of  either  husband  or  wife,  the 
survivor  may  continue  to  possess  and  occupy  the  whole  homestead  until  it  is  other- 
wise disposed  of  according  to  law. 

Disposal  of:  what  deemed  descent. — Sec.  2008.  The  setting  off  of  the  distrib- 
utive share  of  the  husband  or  wife  in  the  real  estate  of  the  deceased,  shall  be  such  a 
disposal  of  the  homestead  as  is  contemplated  in  the  preceding  section.  But  the  sur- 
vivor may  elect  to  retain  the  homestead  for  life  in  lieu  of  such  share  in  the  real  estate 
of  the  deceased  ;  but  if  there  be  no  such  survivor,,  the  homestead  descends  to  the 
issue  of  either  husband  or  wife,  according  to  the  rules  of  desceiit,  unless  otherwise 
directed  by  will,  and  is  to  be  held  by  such  issue  exempt  from  any  antecedent  debts  of 
their  parents  or  their  own. 

When  sold. — Sec.  2009.  If  there  is  no  such  survivor  or  issue,  the  homestead  is 
liable  to  be  sold  for  the  payment  of  any  debts  to  which  it  might  at  that  time  be  sub- 
jected if  it  had  never  been  held  as  a  homestead. 

Devise  of. — Sec.  2010.  Subject  to  the  rights  of  the  surviving  husband  or  wife  as 
declared  by  law,  the  homestead  may  be  devised  like  other  real  estate  of  the  testator. 

What  is  a  homestead-— The  homestead  is  the  house  used 
as  a  home.  To  be  the  homestead  it  must  be  used  as  a  home,  a 
place  to  abide  in,  a  place  for  the  family. 

When  it  is  thus  used  and  occupied,  it  becomes  the  homestead, 
and  not  before;  and  a  portion  of  the  building  used  as  a  home  may 
be  exempt,  and  another  portion  not.  Where  a  house  was  a  three- 
story  building,  erected  on  a  half-lot,  and  the  cellar  and  first  floor 
were  designed  as  a  business  house,  and  the  second  and  third  floor 
as  a  residence  by  the  owner,  and  his  family,  but  had  been  previ- 
ously rented  in  part  for  offices,  it  was  held  that  the  cellar  and  first 
floor  of  the  building  were  liable  to  be  seized  and  sold  on  execu- 
tion, and  that  the  soil,  and  second  and  third  stories  were  exempt. 
1  Iowa,  435;  4  Iowa,  373. 

The  homestead  is  for  the  family. — The  homestead  belongs 

not  alone  to  the  husband,  but  is  wisely  set  apart  by  the  law  for 
the  benefit  of  the  family,  and  is  not  to  be  taken  from  them  by 
law.     1  Iowa,  512;  6  Iowa,  30. 


PROPERTY    EXEMPT   FROJr    EXECUTION.  125 

Value  and  extent  of  homestead. — Under  the  Code,  the 

vahie  of  the  homestead  is  not  limited,  but  the  extent  of  ground 
is.     4  Iowa,  3G8;  12  Iowa,  51 G. 

Liable  for  anteeedent  debts. — The  homestead  is  liable  for 

antecedent  debts,  but  not  till  after  exhausting  all  other  property 
of  the  defendent  liable  to  execution,  and  the  homestead  law  in 
force  at  the  time  of  a  contract,  enters  into  and  becomes  a  part  of 
the  same,  and  if  the  homestead  right  is  acquired  and  perfected, 
such  right  will  not  be  affected  or  impaired  by  a  repeal  of  the  law. 
4  G.  Greene,  563;  3  Iowa,  287. 

By  a  parity  of  reasoning,  the  same  would  be  true  of  rights 
under  exemption  and  appraisement  laws  which  we  shall  hereafter 
consider. 

The  extent  of  a  homestead. — The  statute  provides  that  where 
a  homestead  is  neither  a  town  or  a  city  plat,  it  mvist  not  exceed 
one-half  an  acre. 

But  where  a  party  occupied  as  a  homestead  six  acres,  and  the 
corporate  limits  of  a  city  were  extended  so  as  to  embrace  it,  but 
the  land  had  never  been  laid  out  into  streets  and  alleys,  it  was 
held  that  the  homestead  was  not  within  the  town  or  city  plat,  as 
contemplated  by  the  law,  and  that  the  whole  six  acres  could  be 
held  as  a  homestead;  and  an  injunction  to  restrain  a  sale  by  a 
judgment  creditor  under  such  circumstances,  was  made  perpetual. 
12  Iowa,  516. 

Leasehold  i^roperty  as  a  homestead —Leasehold  prop- 
erty, as  well  as  a  freehold,  may  be  the  subject  of  a  homestead 
right,  and  in  such  a  case,  the  right  of  possession  under  the  lease 
cannot  be  assigned  by  the  husband  without  the  wife's  consent; 
but  it  does  not  embrace  buildings  though  situate  on  the  same  lot 
which  are  rented  to  others.     13  Iowa,  53  and  371. 

Interest  of  a  tenant  in  common  as  a  homestead.— A 

tenant  in  common  may  hold  his  undivided  share  of  the  common 
premises  as  a  homestead,  and  he  may  have  more  than  forty  acres 
set  apart  to  him  as  a  homestead,  if  its  value  does  not  exceed 
five  hundred  dollars.     14  Iowa,  49. 

When  the  homestead  character  attaches. — The  home- 
stead character  does  not  attach  to  property  until  it  is   actually 


126  PROCESS   OF   EXECUnOlS". 

used  and  occupied  as  a  home.  A  mere  intention  to  occupy, 
though  subsequently  carried  out,  does  not  make  the  premises  a. 
homestead  until  actually  a  residence. 

To  merely  plat  and  record  a  tract  of  ground  is  not  a  sufficient 
occupancy;  the  use  of  it  by  the  family  is  an  essential  require- 
ment.    14  Iowa,  438  and  527;  10  Iowa,  51;  9  Iowa,  GO. 

Additions  made  under  verbal  contract  of  purchase.— 

An  addition  made  to  the  homestead  held  under  a  verbal  contract 
of  purchase,  followed  by  actual  possession  and  improvements,  is 
not  subject  to  sale  on  general  execution  for  a  debt  contracted 
subsequent  to  the  possession  and  improvement,  but  before  actual 
conveyance. 

New  homestead  from  the  proceeds  of   okl.— A  new 

homestead  acquired  with  the  proceeds  arising  from  the  sale  of  the 
old  one,  is  also  exempt  from  sale  in  all  cases  in  which  the  former 
homestead  would  have  been  exempt,  and  the  owner  has  a  right 
not  only  to  change  his  homestead  from  one  tract  or  lot  of  land  to 
another  owned  by  him  at  the  time  he  acquired  the  homestead, 
but  to  sell  his  homestead  and  with  the  proceeds  of  such  sale, 
acquire  a  new  homestead  exempt  from  execution  to  the  value  of 
the  old  one,  but  if  he  should  not  with  the  proceeds  of  such  sale 
acquire  a  new  homsteaJ,  such  proceeds  would  be  liable  to  be 
taken  in  satisfaction  of  his  debts.  18  Iowa,  4,  36;  14  Iowa, 
570. 
Temporary  absence  does  not  aifect  the  right— NTor 

does  the  homestead  lose  its  character  as  such,  if  left  for  a  mere 
temporary  purpose ;  the  occupation  under  such  circumstances  is 
regarded  as  actual;  but  if  there  has  been  an  actual  abandonment, 
it  is  like  any  other  property,  and  an  actual  removal  from  the 
homestead  with  no  intention  of  returning,  is  a  waiver  of  any 
right,  though  no  new  homestead  be  acquired.  14  Iowa,  524;  18 
Iowa,  4. 

Right  of  election— and  waiver  of  rights. — If  parties 

occupying  a  homestead  at  the  time  of  a  judicial  sale  have 
another  place  which  they  prefer  as  a  homestead,  they  must  do 
some  act  to  cause  this  to  be  elected,  otherwise  that  which  they 
cccupy  at  the  time  will  be  treated  as  such.     9  Iowa,  509. 


SALE   UNDEK   EXECUTION.  127 

A  widower  and  his  mother  a  family. — A  widower  with- 
out children  who  buys  the  property  as  a  homestead,  and  who 
removes  to  and  actually  resides  on  the  premises  with  his  mother, 
can  hold  the  homestead;  the  homestead  of  every  family  is 
exempt,  but  it  is  not  necessary  that  the  owner  should  be  the 
head  of  a  family.     11  Iowa,  104;  Code,  Sec.  1988. 

It  may  be  sold  for  taxes,  and  on  mortgage  foreclos- 
ure.—  The  homestead  can  be  sold  for  taxes;  on  mechanic's 
liens  for  work,  labor  or  material  furnished,  to  make  improve- 
ments on  the  same;  and  also  on  a  mortgage  foreclosure  where 
the  parties  interested  have  united  in  the  execution  of  the  mort- 
gage; but  not  till  other  property  mortgaged,  or  pledged  in  the 
same  instrument,  for  the  payment  of  the  debt,  is  exhausted; 
and  it  is  also  liable  to  satisfy  a  judgment  for  the  purchase 
money,  as  this  is  considered  an  indebtedness  prior  to  the  acqui- 
sition of  the  homestead.  14  Iowa,  377,  387,  5.7;  16  Iowa,  149; 
13  Iowa,  594;  11  Iowa,  183;  17  Iowa,  510;  23  Iowa,  208;  18 
Iowa,  252. 

The  foregoing  is,  perhaps,  sufficient  to  guide  the  officer  in 
such  cases.  Of  course,  it  is  not  within  the  proper  scope  of  this 
treatise  to  consider  the  law  fully,  relating  to  homesteads,  but 
only  so  far  as  is  necessary  to  guide  the  officer  in  the  discharge 
of  his  duty. 

VI.     SALE  UNDER  EXECUTION. 

The  Code  provides  for  a  sale  of  property  under  execution,  as 
follows: 

Notice  of  sale. — Section  3079.  The  sheriff  must  give  four  weeks'  notice  of  the 
time  and  place  of  selling  real  property,  and  three  weeks'  notice  of  personal  pro- 
perty. 

How  given. — Sec.  3080.  Notice  shall  be  given  by  being  posted  up  in  at  least 
three  public  places  of  the  county,  one  of  which  shall  be  at  the  place  where  the  last 
district  court  was  held.  In  addition  to  which,  in  the  case  of  the  sale  of  real  estate, 
or  where  personal  property  to  the  amount  of  two  hundred  dollars  or  upwards  is  to 
be  sold,  there  shall  be  two  publications  of  such  notice,  in  some  newspaper  printed  in 
the  county,  if  there  be  one.  In  constables'  sales,  there  shall  be  no  newspaper  pub- 
lication, and  the  notice  shall  be  posted  in  three  public  places  of  the  township  of  the 
justice,  and  one  of  them  at  his  office  door;  the  time  of  such  notice  shall  be  two 
weeks. 

Penalty  for  selling  without  notice. — Sec  3081.    An  officer  scHing  without  the 


128  PROCESS   OF   EXECUTION". 

notice  above  prescribed,  shall  forfeit  one  hundred  dollars  to  the  defendant  in  execu- 
tion, in  addition  to  the  actual  damages  sustained  by  either  party;  but  the  validity  of 
the  sale  is  not  thereby  affected. 

How  made. — Sec.  3082.  The  sale  must  be  at  public  auction,  between  nine  o'clock 
in  the  forenoon,  and  four  o'clock  in  the  afternoon,  and  the  hour  of  the  commence- 
ment of  the  sale  must  be  fixed  in  the  notice. 

Sec.  3083.  When  there  are  no  bidders,  or  when  the  amount  offered  is  grossly 
inadequate,  or  when  from  any  cause  the  sale  is  prevented  from  taking  place  on  the 
day  fixed,  the  sheriff  may  postpone  the  sale  for  not  more  than  three  days,  without 
being  required  to  give  any  farther  notice  thereof;  but  he  shall  not  make  more  than 
two  such  postponements,  and  such  postponement  shall  be  publicly  announced  when 
the  sale  should  have  taken  place. 

Sec.  3084.  When  the  property  sells  for  more  than  the  amount  required  to  be  col- 
lected, the  overplus  must  be  paid  to  the  defendant,  unless  the  officer  have  another 
execution  in  his  hands,  on  which  said  overplus  may  be  rightfully  applied. 

Sec.  3085.  If  the  property  levied  on  sell  for  less  than  sufficient  for  that  purpose 
the  plamtiff  may  order  out  another  execution,  which  shall  be  credited  with  the  amount 
of  the  previous  sale.  The  proceedings  under  this  second  sale,  shall  conform  to  those 
hereinbefore  prescribed. 

Sec.  3086.  When  property  is  unsold  for  want  of  bidders,  the  levy  still  holds 
good ;  and  if  there  be  sufficient  time,  it  may  again  be  advertised,  or  the  execution 
returned  and  one  issued  commanding  the  officer  to  sell  the  property,  describing  it, 
previously  levied  on,  to  which  a  clause  may  be  added,  that  if  such  property  does 
not  produce  a  sum  sufficient  to  satisfy  such  execution,  the  officer  shall  proceed  to 
make  an  additional  levy,  on  which  he  shall  proceed  as  on  other  executions  or  the 
plaintiff  may,  in  writing  filed  with  the  clerk  or  justice,  abandon  such  levy  upon  pay- 
ing the  costs  thereof.  In  which  case  execution  may  issue  with  the  same  effect  as  if 
none  had  been  issued. 

Sec.  3087.  If  the  defendant  is  in  actual  occupation  and  possession  of  any  part  of 
the  land  levied  on,  the  officer  having  the  execution,  shall,  at  least  twenty  days  pre- 
vious to  such  sale,  serve  the  defendant  with  written  notice  stating  that  the  execution 
is  levied  on  said  land,  and  mentioning  the  time  and  place  of  sale;  and  sales  made 
without  the  notice  required  in  this  section,  may  be  set  aside,  on  motion  made  at  the 
same  or  the  next  term  thereafter. 

Sec.  3088.  At  any  time  before  nine  o'clock,  A.  M.,  of  the  day  of  the  sale,  the 
defendant  may  deliver  to  the  officer  a  plan  of  division  of  the  land  levied  on,  sub- 
scribed by  him,  and  in  that  case,  the  officer  shall  sell,  according  to  said  plan,  so  much 
of  the  land  as  may  be  necessary  to  satisfy  the  debt  and  costs,  and  no  more.  If  no 
such  plan  is  furnished,  the  officer  may  sell  without  any  division. 

Sec.  3089.  When  the  purchaser  fails  to  pay  the  money  when  demanded,  the  plain- 
tiff or  his  attorney  may  elect  to  proceed  against  him  for  the  amount;  otherwise  the 
sheriff  shall  treat  the  sale  as  a  nullity,  and  may  sell  the  property  on  the  same  day,  or 
after  a  postponement  as  above  authorized. 

Sec.  3090.  When  any  person  shall  purchase  at  a  sheriffs  sale,  any  real  estate  on 
which  the  judgment  upon  which  the  execution  issued  was  not  a  lien  at  the  time  of 
the  levy,  and  which  fact  was  unknown  to  the.purchaser,  the  court  shall  set  aside  such 
sale  oil  motion,  notice  having  been  given  to  the  debtor,  as  in  case  of  action,  and  a 
new  execution  may  be  issued  to  enforce  the  judgment,  and  upon  the  order  being 
made  to  set  aside  the  sale,  the  sheriff  or  judgment  creditor  shall  pay  over  to  the 


SALE   UNDER   EXECUTION".  129 

purchaser  the  purchase  money ;  said  motion  may  also  be  made  by  any  person 
interested  in  the  real  estate. 

Sec.  3091.  Money  levied  upon  may  be  appropriated  without  being  advertised  or 
sold.  The  same  may  be  done  with  bank  bills,  drafts,  promissory  notes,  or  other 
papers  of  the  like  character,  if  the  plaintiff  will  receive  them  at  their  par  value,  as 
cash,  or  if  the  officer  can  exchange  them  for  cash  at  that  value. 

Sec.  3092.  When  a  judgment  has  been  obtained  against  the  executor  of  one 
deceased,  or  against  the  decedetit  in  his  lifetime,  which  the  personal  estate  of  the 
deceased  is  insufficient  to  satisfy,  the  plaintiff  may  file  his  petition  in  the  office  of  the 
clerk  of  the  court  where  the  judgment  is  a  lien,  against  the  executor,  the  heirs  and 
devisees  of  real  estate  (if  such  there  be),  setting  forth  the  facts,  and  that  there  is  real 
estate  of  the  deceased,  describing  its  location  and  extent  and  praying  the  court  to 
award  execution  against  the  same. 

Sec.  3093.  The  person  against  whom  the  petition  is  filed  shall  be  notified  by  the 
plaintiff  to  appear  on  the  first  day  of  the  term,  and  show  cause,  if  any  he  have, 
why  execution  should  not  be  awarded. 

Sec.  3094.  The  notice  shall  be  served  and  returned  in  the  ordinary  manner, 
and  the  same  length  of  time  shall  be  allowed  for  appearance  as  in  civil  actions, 
and  service  of  such  notice  on  non-resident  defendants  may  be  had  in  such  cases  by 
publication. 

Sec.  3095.  At  the  proper  time,  the  court  shall  award  the  execution,  unless  suffi- 
cient cause  be  shown  to  the  contrary. 

Sec.  3096.  The  non-age  of  the  heirs  and  devisees  shall  not  be  deemed  such 
sufficient  cause. 

Sec.  3097.  Mutual  judgments,  the  executions  on  which  are  in  the  hands  of  the 
same  officer  may  be  set  off,  the  one  against  the  other ;  except  that  the  costs  shall  not 
be  so  set  off,  unless  the  balance  of  cash  actually  collected  on  the  large  judgment  is  suffi- 
cient to  pay  the  costs  of  the  judgments,  and  such  costs  shall  be  paid  therefrom 
accordingly. 

Sec.  3098,  When  real  property  has  been  levied  upon,  if  the  estate  is  less  than  a 
leasehold,  having  two  years  of  an  unexpired  term,  the  sale  is  absolute. 

Sec.  3099.  When  the  estate  is  of  a  larger  amount,  the  property  is  redeemable,  as 
hereinafter  p  rescribed. 

NOTICE  OF  SHERIFF'S  SALE. 
No.  83. 

Notice  is  hereby  given:  That  by  virtue  of  a  ...  execution,  direct- 
ed to  ine  from  the  clerk  of  the  ....  Court  of  ....  county,  Iowa,  on 
a  judgment  obtained  in  said  court  on  the  . . .  dayof  . .  . .,  IS.  .,in 
favor  of  . . . ,  as  phiintilF,  and  against  .  . . ,  as  defendant,  for  the  sum 
of  ... .  dollars  and  ....  cents,  and  costs  taxed  at  $ .... ,  and  accru- 
ing costs,  1  have  levied  upon  the  following  real  estatc,(or  personal 
property  or  both),  as  the  ])roperty  of  said  defendant,  to  satisfy  said 
execution,  to-\vit:  [here  doticri be  the  property];  anil  will  offer  the 
same  for  sale  to  the  highest  bidder  for  cash  in  hand,  on  the  ....  day 
of  .  .  . . ,  A.  D.  18 . . ,  in  front  of  the  court-house  door  in  .  . . . ,  at  the 
hour  of  . .  o'clock,  . .  M..  of  said  day,  when  and  where  due  attend- 
ance will  be  given  by  the  undersigned,  (or  if  j)ersonal  property 
state  the  place  of  sale  according  to  the  fact). 

Dated  at ,18...  .,.      .^.    /.      .  , 

,  Niertff  of  mid  cou/tti/. 

9 


130  PROCESS   OF   EXECUTION". 

Time  of  notice  {iiul  publication. — It  will  be  observed  that 
the  statute  requires  four  weeks'  notice  to  be  given  of  the  sale  of 
real  estate,  and  three  weeks'  notice  of  personal  property;  and  in 
case  of  the  sale  of  real  estate  or  personal  property  of  the  amount 
of  two  hundred  dollars  and  upward,  two  publications  of  the 
notice  is  required  in  some  newspaper  of  the  county,  if  there  be 
one. 

It  is  not  necessary  that  the  notice  be  published  four  weeks 
previous  to  the  sale;  two  publications  in  a  daily  paper  at  any 
time  before  the  sale  would  be  sufficient. 

But  in  every  case  there  should  be  one  of  such  notices  posted 
up  in  three  different  places  in  the  county,  one  of  which  should  be 
at  the  place  where  the  last  District  Court  was  held. 

The  notice  should  fix  the  time  and  place  of  sale,  but  where  the 
notice  fixed  the  time  as  between  the  hours  of  two  and  five  o'clock 
in  the  afternon,  it  was  held,  under  a  former  statute,  that  a  valid 
sale  might  be  made  under  such  a  notice,  as  it  would  not  be  pre- 
sumed that  the  officer  sold  after  the  time  directed  by  the  statute, 
and  that  it  would  be  presumed  until  the  contrary  appeared,  that 
the  officer  did  his  duty;  but  under  the  Code  such  a  sale  would  in 
any  event  be  good  so  far  as  the  purchaser  would  be  concerned. 
4  G.  Greene,  510. 

Sale  valid  without  notice. — The  statute  provides,  that  a 
sale  without  such  notice,  shall  not  affect  the  validity  of  the  sale, 
but  the  officer  in  such  a  case  forfeits  one  hundred  dollars,  beside 
actual  damages  sustained  by  either  party.     Code,  Sec.  3081. 

Notice  to  defendant. — The  statute  requires  notice  to  be  given 
to  the  defendant  of  a  levy  on  land,  where  he  is  in  the  actual  pos- 
session of  the  same,  or  any  part  thereof.  This  notice  is  required 
to  be  in  writing,  and  should  be  served  on  the  defendant  at  least 
twentv  days  previous  to  the  sale,  and  should  state  that  the  execu- 
tion is  levied  on  the  land  describing  it," and  the  time  and  place  of 
sale;  and  sales  made  without  this  notice  may  be  set  aside  on 
motion  made  at  the  same,  or  the  next  term  thereafter. 

The  notice  to  the  defendant  may  be  in  the  following  form: 


SA.LK   UNDER   EXECUnON.  131 

NOTICE  TO  DEPENDANT  OF  LEVY. 
No.  S3. 

State  of  Iowa,      ) 
County,      J 

To ; 

You  are  hereby  notified  that  by  virtue  of  an  execution  to  me 
directed,  issued  out  of  the  clerk's  office  of  the  ....  Court  of  the 
State  of  Iowa,  in  and  for  ....  county,  upon  a  judgment  rendered 

in  said  court,  in  favor  of ,  against  you  for  the  sum  of 

....  dollars  debt,  and  ....  costs,  I  have  levied  upon  the  follow- 
ing real  estate,  to-wit:  [here  describe  the  property],  of  which  you 
are  in  the  actual  occupation  and  possession ;  and  that  on  the  .... 
day  of  ....,18..,  at  the  front  door  of  the  court  house  in  said 
county,  at  ....  o'clock,  . .  M.,  of  said  day  I  will  offer  the  same 
for  sale  to  the  highest  bidder  at  public  auction,  to  satisfy  said  exe- 
cution, with  all  legally  accruing  costs. 

Dated  this  ....  day  of  . . . . ,  18 . . . 

A B . . . . ,  Sheriff  of  said  county. 

When  the  sale  is  absolute. — If  the  estate  is  less  than  a 
leasehold,  having  two  years  of  unexpired  term,  the  sale  shall  be 
absolute,  and  when  it  is  of  larger  amount,  it  is  redeemable  as  we 
shall  hereafter  notice. 

Provision  of  the  Revision  of  1860. — The  Revision  of 

18C0  provided  for  the  sale  of  all  property  on  execution  only  after 
appraisement,  and  for  two-thirds  of  its  appraised  value,  except 
where  the  property  had  been  conveyed  by  the  debtor  to  hinder 
or  delay  collection  or  defraud  creditors,  and  except  that  if  the 
defendant  elected  to  have  it  sold  subject  to  redemption  before  a 
levy,  and  filed  his  election  in  writing  with  the  clerk  of  the  court 
issuing  the  writ,  the  sheriff  should  in  this  case  sell  the  same  sub- 
ject to  redemption.     Rev.,  Sees.  33G0,  3371. 

The  right  not  impaired  by  repeal  of  statute. — The 

rights  of  a  debtor  under  these  provisions  to  have  real  estate  sold 
on  appraisement,  cannot  be  impaired  by  the  provisions  of  the 
Code,  for  a  sale  without  appraisement  and  with  right  of  redemp- 
tion, where  the  deVjt  on  which  the  judgment  was  rendered,  was 
contracted  wliile  the  provisions  of  the  Revision  of  1860  were  in 
force,  and  before  the  Code  took  effect,  and  the  officer  should  in 
such  cases  proceed  to  appraise  in  making  sales  on  execution,  and 
sell  the  lands  for  not  less  than  two-thirds  of  the  appraised  value, 
a.s   provided    by  the  Revision.      Rev.,  Sees.   3300,  3370,  3371, 


132  PROCESS   OF   EXECUTION. 

and  4  G.  Greene,  5G3;  3  Iowa,  287;  10  Iowa,  470;  11  Iowa,  284; 
1  How.  S.  C.  R.  311;  2  Id.,  608;  3  Id.,  707. 

In  cases  of  appraisement. — The  Code  provides  for  the 
appraisement  of  property  in  certain  cases,  as  follows: 

How  done  and  amount  it  must  sell  for. — Sec.  3100.  Per.sonal  property  levied 
upon  and  advertised  for  sale  on  execution,  must  be  appraised  before  sale  by  two  dis- 
interested householders  of  the  neighborhood,  one  of  whom  shall  be  chosen  by  the 
execution  debtor,  and  the  other  by  the  plaintiff,  or  in  case  of  the  absence  of  either 
party,  or  if  either  or  both  parties  neglect  or  refuse  to  make  choice,  the  officer  making 
the  levy  shall  choose  one  or  both,  as  the  case  may  be,  who  shall  forthwth  proceed  to 
return  to  said  officer  a  just  and  true  appraisement,  under  oath,  of  said  property,  if 
they  can  agree ;  and  in  case  they  cannot  agree,  they  shall  choose  another  disinter- 
ested householder,  and  with  his  assistance  they  shall  complete  such  appraisement, 
and  the  property  shall  not  be  sold  for  less  than  two-thirds  of  said  valuation ;  pro- 
vided the  same  shall  be  offered  for  three  successive  days  at  the  same  place  and  hour 
of  day  as  advertised,  and  if  no  offer  equal  to  two-thirds  the  value  thereof  be  made, 
then  it  shall  be  lawful  to  sell  said  property  for  one-half  of  said  valuation. 


OATH  TO  APPRAISEKS. 
No.  84. 

You,  and  each  of  you,  do  solemnly  swear,  (or  affirm,)  that  you 
will  make  a  just  and  true  appraisement  of  each  and  every  article 
of  personal  property  now  here  shown  you  for  that  purpose,  accord- 
ing to  the  best  of  your  knowledge  and  ability.     So  help  you  God. 

The  above  may  be  administered  orally  to  the  appraisers. 


APPRAISEMENT  AND  RETURN. 
No.  85. 

State  of  Iowa,      ) 
County,     i 

"We,  the  undersigned,  householders  of  said  county,  having  been 
duly  selected  and  sworn  by  A  B,  sheriff  of  said  county,  to  make 
a  just  and  true  appraisement  of  the  personal  property  hereinafter 
described,  do  certify  and  return  to  said  officer,  that  we  have  made 
the  appraisement  as  follows: 

One  bay  horse  appraised  at $150.00 

One  covered  buggy,  appraised  at 125.00 

One  ditching  machine,  appraised  at 80.00 

Total  value $355.00 

Witness  our  hands  this  ....  day  of  . . . . ,  18. . 

Fees: — 

C  D,  six  hours,  .75  C D . . . 

E  F,  six  hours,  .75  E F ,  |-  Appraisers. 

GH, six  hours,  .75  G....  H... 


SALE    UNDER   EXECUTION.  133 

Appraisement  of  real  estate. — The  provisions  of  the  Revis- 

ioa  in  reference  to  appraisement  are  obscure  and  indefinite,  as  for 
instance  in  reference  to  the  amount  of  liens,  and  who  should 
determine  the  amount  of  them. 

The  interests  of  the  defendant  to  be  appraised. — The 

interest  of  the  defendant  only  in  the  real  estate  should  be 
appraised,  and  where  the  property  is  subject  to  prior  liens,  the 
appraisement  should  be  of  the  interest  of  the  defendant  therein, 
which  is  the  balance  found  by  deducting  such  prior  liens,  from 
two-thirds  of  the  appraised  value.     16  Iowa,  469. 

If  the  interest  is  an  equitable  one. — Where  the  interest 

of  the  defendant  in  the  real  estate  is  only  equitable,  and  not  an 
absolute  one,  the  value  thereof  should  be  appraised  accordingly; 
and  the  safer  practice  would  seem  to  be,  where  there  are  claims 
and  interests  of  an  indefinite  and  uncertain  character,  and  some 
uncertainty  exists  as  to  whether  they  constitute  proper  liens,  or 
superior  equities  to  the  estate,  to  merely  appraise  the  interest  of 
the  defendant,  and  not  attempt  to  fix  the  amount  of  said  claims 
as  prior  liens,  and  appraise  the  estate  accordingly. 


APPEAISEMENT  AND  OATH. 
No.  86. 

State  of  Iowa, 
County 

We,  the  undersigned  appraisers,  selected  to  value  the  property 

hereafter  described,  which  was  levied  upon  by ,  sheriff 

of  ....    county,  Iowa,  by  virtue  of  an  execution  issued  out  of 

the  clerk's  office  of  the    ....  Court,  in   favor  of ,  and 

against  the  property  of ,  do  here    report  that  we  have 

valued  said  property  according  to  its  fair  value  at  this  time,  and 
that  the  schedule,  hereto  annexed,  contains  a  correct  inventory 
of  said  property,  and  that  the  values  therein  affixed  to  each 
article  respectively  are  the  fair  values  thereof  at  this  time,  namely: 

Schedule  of  property  appraised.     [Here  insert  list  of  property.] 

Signed  this  . .'. .  day  of  . . . . ,  A.  D.  18 


^raisers. 
....   ....,    ) 

State  of  Iowa,       ) 


'    y  Appi 


County.  ^ 


We, ,  being  duly  sworn,  depose  and  say  that  the  fore- 
going  appraisement   made    by  us,  shows    the    fair    value  of   the 


134  PROCESS    OF   EXECUTION. 

property  in  the  above  schedule  described,  at  this  time,  as  we 
believe. 

'    >  Appraisers. 

Sworn   to  before  me,  and   subscribed   in  my  presence,  by  the 

said ,  this day  of  . . . . ,  A.  D.,  18 . . 

,  Sheriff'. 


VII.    RIGHT  OF  REDEMPTION  ON  EXECUTION  SALES. 

The  Code  provides  in  relation  to  redemption,  and  the  sherifTs 
duty,  as  follows: 

KEDEMPTIOX. 

Officer  to  execute  deed  or  certificate.— Sec.  .3101.  If  the  property  sold  is  not 
subject  to  redemption,  the  sheriff  must  execute  a  deed  therefor  to  the  purchaser;  but  if 
the  same  is  subject  to  redemption,  he  shall  execute  to  such  purchaser  a  certificate  con- 
taining a  description  of  the  property  and  the  amount  of  money  paid  by  such  pur- 
chaser, and  stating  that  unless  redemption  is  made  within  one  year  thereafter 
according  to  law,  he  or  his  heirs  or  assigns,  will  be  entitled  to  a  deed  for  the  same. 

By  defendant  when. — Sec.  3102.  The  defendant  may  redeem  real  property  at 
any  time  within  one  year  from  the  day  of  sale  as  herein  provided,  and  will,  in  the 
meantime,  be  entitled  to  the  possession  of  the  property.  But  in  no  action  where  the 
defendant  has  taken  an  appeal  from  the  circuit  or  district  court,  or  stayed  execution 
on  the  judgment,  shall  he  be  entitled  to  redeem. 

When  by  creditors. — Sec.  3103.  For  the  first  six  months  after  such  sale,  his  right 
to  redeem  is  exclusive ;  but  if  no  redemption  is  made  by  him  at  the  end  of  that  time, 
any  creditor  of  the  defendant  whose  demand  is  a  lien  upon  such  real  estate,  may 
redeem  the  same  at  any  time  within  nine  months  from  the  day  of  sale.  '  But  a 
mechanic's  lien,  before  judgment  thereon,  is  not  of  such  character  as  to  entitle  the 
holder  to  redeem. 

Entitled  to  assignment. — Sec.  3120.  A  creditor  redeeming  as  above  contem- 
plated, is  entitled  to  receive  an  assignment  of  the  certificate  issued  by  the  sheriff  to 
the  original  purchaser  as  hereinbefore  directed. 

Sale  in  parcels. — Sec.  3121.  When  the  property  has  been  sold  in  parcels,  any 
distinct  portion  may  be  redeemed  by  itself 

Tenants  in  common. — Sec.  3122.  When  the  interests  of  several  tenants  in  com- 
mon have  been  sold  on  execution,  the  undivided  portion  of  any  or  either  of  them 
may  be  redeemed  separately. 

Defendant  may  transfer  rig'ht. — Sec.  3123.  The  rights  of  a  defendant  in  rela- 
tion to  redemption  are  transferable,  and  the  assignee  has  the  like  power  to  redeem. 

Deed  made  to  whom. — Sec.  3124.  If  the  defendant  or  his  assignee  fail  to  redeem, 
the  sheriff  must,  at  the  end  of  the  year,  execute  a  deed  to  the  person  who  is  entitled 
to  the  certificate  as  hereinbefore  provided,  or  to  his  assignee.  If  the  person  entitled 
be  dead,  the  deed  shall  be  made  to  his  heirs,  but  the  property  will  be  subject  to  the 
payment  of  the  debts  of  the  deceased  in  the  same  manner  as  if  acquired  during  his 
lifetime. 

When  evidence  of  title  to  be  recorded. — Sec.  3125.    The  purchaser  of  real 


EIGHT    OF    EEDEMPTIOISr    ON    EXECUTION   SALES.  135 

estate  at  a  sale  on  execution,  need  not  place  any  evidence  of  his  purchase  upon  record 
until  twenty  days  after  the  expiration  of  the  full  time  of  redemption.  Up  to  that 
time,  the  publicity  of  the  proceedings  is  constructive  notice  of  the  rights  of  the  pur- 
chaser, but  no  longer. 

Deeds  imply  regtilarity. — Sec.  3126.  Deeds  executed  by  a  sheriff  in  pursuance 
of  the  sales  contemplated  in  this  chapter,  are  presumptive  evidence  of  the  regularity 
of  all  previous  proceedings  in  the  case,  and  may  be  given  in  evidence  without  pre- 
liminary proof, 

SHERIFF'S  EEDEMPTION  CEETIFICATE. 

No.   87. 

To  whom  it  may  concern: 

I, ,  sheriff  of  ....    county,  Iowa,  hereby  certify  that 

by  virtue  of  a  ....  execution  to  me  directed,  dated ,  A.  D. 

18.  .,  and  issued  out  of  the  clerk's  office  of  the  ....  Court  of  the 
state  of  Iowa,  in  and  for  ....  county,  upon  a  judgment  .  . . . , 
rendered  in  said   court  on   the    ....    day  of  .  . . .,  A.  D.  18. .,  in 

favor  of ,  and    against ,  for  the  sum  of    .... 

dollars  debt,  and  ....  dollars  costs,  I  did,  on  the  ....  day  of 
. . . . ,  A.  D.  J8.  .,  levy  on  the  following  described  real  estate, 
to- wit:  [here  describe  the  real  estate],  as  the  property  of  the  said 
to  satisfy  the  said  execution,  amounting  to  ....  dol- 
lars debt,  and  ....  dollars  costs,  together  with  interest  and  accru- 
ing costs  thereon;  that  I  gave  four  weeks'  notice  of  the  time  and 
place  of  selling  said  real  property,  under  said  execution,  by  post- 
ing up  printed  notices  thereof  at  three  public  places  in  said 
county,  one  of  which  was  at  the  court  house  in  . .  . .,  where  the 
last  District  Court  was  held,  and   by  causing  two  publications  of 

said  notice  to  be  made  in  the ,  a  newspaper  printed  at 

. . . .,  in  said  county,  immediately  before  the  time  of  sale,  that  in 
pursuance  of  the  notice  of  sale  aforesaid,  in  conformity  to  law 
and  by  virtue  of  said  execution,  I  did,  on  the  ....  day  of  . . . . , 
A.  D.  18. .,  at  ....  o'clock  in  the  ....  noon  of  said  day,  at  . . . . , 
expose  and  offer  the  said   real  estate   for   sale   at  public  auction, 

and  the  said then  and  there  bid  the  sum  of  ....  dollars 

for  the  same  .  . .  . ,  and  that  being  the  highest  and  best  bid  offered 
for  said  real  estate,  the  same  was  then  and  there   openly  struck 

off"  and  sold  to  the   said for  the  sum   of    ....    dollars, 

who  then  and  there  paid  the  amount  of  said  bid  to  me  in  cash. 

Now,  unless  redemption  is  made  within  one  year  after  the  date 

of  said  sale^  according  to  law,  the  said     ,  his  heirs  and 

assignees,  v»'ill  be  entitled  to  a  deed  for  the  said  real  estate  sold 
as  aforesaid,  and  described  as  follows,  to-wit:  [Here  describe  the 
real  estate  sold]. 

In  witness  whereof  I  have  hereunto  set  my  hand  this  ....  day 
of  ....,  A.D.  18... 

A .  . . .    B . . . . ,  sheriff  of  ... .  county^  Iowa. 


13G  PEOCESS   OF   EXECUTION. 

SHERIFF'S  DEED. 
No.  SS. 

This  indenture,  made  the  ....  day  of  .  . . .,  A.  D.  18 .  .,  by  and 

between ,  sherill  of  ....  county,  Iowa,  of  the  first  ]>ar  •., 

and ,  of  the  county  of   .  .  .  . ,  in  the  State  of  .  . .  . ,  of  the 

second  part,  witnesseth:  That  whereas,  by  virtue  of  a  . . . .  exe- 
cution,  directed  to    ,  the   then   acting  sheriff  of    .... 

county,  dated  the  ....  day  of  .  . .  .,  A.  D.  IS.  .,  and  issued  out 
of  the  clerk's  office  of  the  ....  Court  of  the  State  of  Iowa,  in  and 
for  ....  county,  under  the  seal  of  said  court  upon  a ,  ren- 
dered in  said  ....  Court,  on  the  ....  day  of  .  . . . ,  A.  D.  18 . . ,  in 

favor  of ,  and  against ,  for  the   sum   of    .... 

dollars  and    ....    cents,  debt,  and    ....    dollars  and    ....  cents, 

costs,  the  said ,  sheriff  as  aforesaid,  did,  on  the  ....  day 

of  . . . .,  A.  D.  18. .,  levy  upon  the  real  estate  hereafter  described, 

as  the   property  of  the  said    ,  defendant,  to  satisfy  the 

said  execution,  amounting  to  ....  dollars  and  ....  cents,  debt, 
and  ....  dollars  and  ....  cents,  costs,  together  with  interest  and 
accruing  costs;  and  whereas,  the  said ,  sheriff  as  afore- 
said, gave  four  weeks'  notice  of  the  time  and  place  of  selling  said 
real  estate  under  said  execution,  by  posting  up  ....  notices 
thereof  at  three  public  places  in  said  ....  county,  one  of  which 
was  at  the  court  house  in  . .  .  . ,  where  the  last  District  Court  was 
held,  and  by  causing  two  pviblications  of  said  notice  to  be  made 

in  the    ,  a  newspaper  printed  at    . . . . ,  in   said   county, 

immediately  preceding  the  day  of  sale.  [If  there  be  no  newspa- 
per published  in  the  county,  so  state  the  fact;  and  if  there  was  an 
appraisement  of  the  property,  here  insert  the  facts  in  the  form 
hereafter  suggested]. 

And  whereas,  the  said  ....  .  . . . ,  as  sheriff  aforesaid,  in  pur- 
suance of  the  notice  of  sale  aforesaid,  in  conformity  to  law,  and 
by  virtue  of  said  execution,  .  .  .  .,  did,  on  the  ....  day  of  .  .  . ., 
A.  D.  18. .,  at  the  hour  of  ....  o'clock,  in  the  .  .  .  .noon  of  said 
day,  at  .  .  .  . ,  expose  and  offer  for  sale  at  public  auction  the  real 
estate  hereinafter  described,  and  then  and  there  sell   the  same  at 

public  auction  to ,  for  the  sum  of  . .  .  dollars,  he  being  the 

highest  and  best  bidder  therefor.  Whereupon  the  said  sheriff,  after 
receiving  the  said  sum  of  money  from  said  purchaser,  made  and 
delivered  him  a  certificate  of  sale  as  directed  bylaw;  and  whereas, 
the  time  of  redemption  having  expired  without  any  redemption 
being  made:  (or  in  case  of  redemption  by  a  creditor,  or  an  assign- 
ment of  the  certificate,  so  state  the  fact,  and  insert  the  redemp- 
tioner's  or  assignee's  name  as  grantee). 

Now  therefore,  this  indenture  witnesseth,  that  in  consideration 
of  the  premises,  and  of  the  said  sum  of  ....  dollars  so  bid  and 
paid  as  aforesaid,  the  receipt  whereof  is  hereby  acknowledged,  I, 

the  said ,  sheriff  as  aforesaid,  party  of  the  first  part,  do 

hereby  sell  and  convey  unto  the  said ,  party  of  the  se- 
cond part,  his  heirs  and  assigns  forever,  the  following  described 
real  estate,  situated  in  the  county  of   . . . . ,  and  State  of  Iowa, 


EIGHT   OF   REDEMPTION   ON   EXECUTION    SALE.  137 

(being  the  same  real  estate  hereinbefore  referred  to),  to- wit:  [Here 
describe  the  real  estate].  To  have  and  to  hold  the  said  real 
estate,  with  all  the  appurtenances  thereunto  belonging,  to  the 
said ,  his  heirs  and  assigns  forever,  as  fully  and  abso- 
lutely as  the  said  party  of  the  first  part,  by  virtue  of  the  premises, 
might  and  could  sell  and  convey  the  same. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 
set  his  hand  this  ....  day  of  . .  .  . ,  A.  D.  18 . . . 

,  sheriff  of  ... .  county. 

State  of  Iowa,        ) 
County.     \  ^^' 

Be  it  remembered,  that  on  this  ....  day  of  . .  . . ,  A.  D.  18 . . , 

before  the  undersigned in  and  for  said  county,  personally 

appeared ,  sheriff  of  ....  county,  Iowa,  to  me  person- 
ally known  to  be  the  identical  person  whose  name  is  svibscribed 
to  the  foregoing  deed  as  grantor,  and  acknowledged  the  execution 
thereof  to  be  his  voluntry  act  and  deed  as  said  sheriff,  for  the 
purposes  therein  mentioned. 

P  -.       Witness  my  hand  and  seal,  the  day  and  year  last  above 

[SEAL.J  written. 


Deed  on  appraisement  or  on  sale  of  lease-hold  inter- 
est.— If  a  sale  is  made  after  appraisement,  or  is  of  a  a  lease-hold 
interest  of  less  than  two  years  unexpired  term,  the  sale  is  abso- 
lute and  the  deed  should  be  executed  at  once  to  the  purchaser, 
and  the  facts  relating  to  the  appraisement,  if  the  same  was 
appraised,  should  be  recited  in  the  deed  immediately  after  the 
recital  of  the  notices  of  the  time  and  place  of  sale,  and  may  be  in 
the  following  form: 

And  WHEREAS,  for  the  purpose  of  ascertaining  the  value  of  said 
real  estate,  E  F,  and  G  H,  two  disinterested  freeholders  of  the 
neighborhood,  were  on  the  ....  day  of  . . . . ,  18 . . ,  chosen  accord- 
ing to  law,  as  appraisers  of  the  value  thereof,  and  then  made  and 
delivered  to  said  sheriff,  an  appraisement  thereof  in  writing,  duly 
signed  and  sworn  to  by  them,  and  from  which  it  appeared  that 
they  appraised  the  value  thereof  at  $ .... : 

Now  therefore,  (concluding  as  in  the  last  form.) 

In  case  of  sale  after  appraisement.— The  part  of  the 

above  form  relating  to  redemption,  should  of  course  be  omitted, 
and  the  deed  should  show  a  sale  for  at  least  two-thirds  of  the 
appraised  value. 


138  PROCESS    OP   EXECUTION. 

VIII.    REVIVOR  OF  JUDGMENTS. 

On  this  subject  so  far  as  relates  to  the  duty  of  the  sheriff,  the 
Code  provides: 

Death  of  plaintiff:  how  execution  may  issue. — Sec.  3130.  The  death  of  one 
or  all  the  plaintiffs  shall  not  prevent  an  execution  being  issued,  but  on  such  e.vecu- 
tion  the  clerk  shall  indorse  the  death  of  such  of  them  as  are  dead,  and  if  all  be 
dead,  the  names  of  the  personal  representatives,  or  the  last  survivor,  if  the  judgment 
passed  to  the  personal  representatives,  or  the  names  of  the  survivor's  heirs,  if  the 
judgment  was  for  real  property. 

Officer's  duty. — Sec.  3131.  The  sheriff,  in  acting  upon  an  execution  indorsed  as 
provided  in  the  last  section,  shall  proceed  as  if  the  surviving  plaintiff  or  plaintiffs,  or 
the  personal  representatives  or  heirs,  were  the  only  plaintiffs  in  the  e.vecution,  and 
take  bonds  accordingly. 

IX.     PROCEEDINGS  AUXILIARY  TO  EXECUTION. 

On  proceedings  auxiliary  to  execution,  the  statutes  further  pro- 
vide, that  the  sheriff  may  be  appointed  a  receiver  of  the  property 
of  the  judgment  debtor;  and  he  and  the  sureties  on  his  official 
bond,  are  liable  in  such  cases  for  the  faithful  discharge  of  his 
duties  as  such.     Code,  Sacs.  3141,  3143. 

X.     DECISIONS   RELATING  TO  SHERIFFS. 

Presumptions. — In  regard  to  sheriff's  sales  it  has  been  held, 
that  it  is  to  be  presumed  that  the  sale  was  regularly  conducted,  and 
that  a  sheriff's  sale  under  an  execution  made  after  seventy  days 
from  the  teste  thereof,  would  be  an  irregularity  only  and  not  render 
the  sale  void.     20  Iowa,  431;   31  Iowa,  97,  291. 

But  a  prior  levy,  undisposed  of,  renders  a  sale  of  the  property 
upon  a  subsequent  levy  under  execution  irregular.     21  Iowa,  135. 

An  attorney  cannot  adjourn  a  sale. — A  sheriff  has  no 
power  to  authorize  an  attorney  to  adjourn  a  judicial  sale,  and  a 
sale  made  in  pursuance  of  such  an  adjournment  is  invalid.  27 
Iowa,  348. 

Inadequacy  of  price. — Inadequacy  of  price  would  not  be 
sufficient  to  set  aside  a  judicial  sale  where  there  was  no  fraud  in 
the  transaction.     25  Iowa,  456. 

Presumptions  in  favor  of  the  officer.— We  have  already 
observed,  that  the  officer  is   presumed  to  do  his  duty;  and  where 


DECISIONS   RELATING   TO   SHERIFFS.  139 

the  return  showed  that  a  sale  of  two  lots  was  made  upon  an  exe- 
cution, and  it  did  not  appear  that  they  were  sold  separately,  it 
was  held,  that  it  was  to  be  presumed  that  the  officer  did  his  duty 
in  that  respect,  and  that  although  the  fact  that  two  lots  were  sold 
on  execution  en  masse,  might  be  available  to  defeat  the  sale  to 
the  execution  plaintiff,  it  may  well  be  questioned  whether  it 
could  be,  as  against  a  third  party  after  the  expiration  of  the  time 
of  redemption,  and  the  execution  and  delivery  of  a  sheriff's  deed. 
24  Iowa,  204. 

The  return  of  the  officer  to  the  writ  \s  prima  facie  evidence  of 
the  facts  therein  stated.     9  Iowa,  140. 

Sale  en  masse- — A  sale  eti  masse  of  lands  by  the  sheriff  on 
execution  was  set  aside,  where  it  apeared  that  it  was  sold  for  less 
than  one-sixth  of  the  value  of  the  land,  and  pending  litigation. 
26  Iowa,  283. 

But  a  sheriff's  sale  will  not  be  set  aside  on  the  ground  of  a  sale 
en  m.asse,  where  it  appears  that  the  land  was  first  offered  in  forty- 
acre  tracts  by  the  sheriff,  and  that  no  bids  were  made  for  any 
portion  thus  offered.     27  Iowa,  468. 

Discretion  of  the  olRcer. — As  to  the  time,  place  and  man- 
ner of  sale  and  its  adjournment,  the  sheriff  is  invested  with  a 
sound  discretion.  He  should  never  forget  that  he  is  for  many 
purposes  the  agent  of  both  parties  in  the  execution  of  the  power 
with  which  the  law  invests  him.  His  discretion  must  be  exercised 
with  a  fair  and  impartial  attention  to  the  interests  of  all  con- 
cerned, and  where  on  the  day  first  fixed  for  a  sale  there  are  no 
bidders,  or  where  the  amount  bid  is  grossly  inadequate,  he 
should  ordinarily  postpone  the  sale,  especially  where  he  is  request- 
ed to  do  so  by  the  debtor,  and  if  he  does  not,  it  will  be  set  aside 
upon  a  seasonable  application;  but  censurable  conduct  on  the 
part  of  the  sheriff,  as  in  changing  the  day  of  sale  without  reason, 
and  in  showing  ill  will  to  the  debtor,  is  not  sufficient  ground  for 
setting  aside  a  sale,  when  it  is  not  shown  that  the  purchaser  was 
connected  with  it.     16  Iowa,  519. 

Failure  to  pay  ])id. — Upon  the  failure  of  the  successful 
bidder  at  a  judicial  sale  to  pay  the  amount  of  his  bid,  the  plain- 
tiff or  his  attorney  may  elect  to  proceed  against  him  for   the 


140  PROCESS   OF   EXECUTION. 

amount,  otherwise  the  sheriff  shall  treat  the  sale  as  a  nullity,  and 
may  sell  the  property  on  the  same  day  or  after  a  postponement  as 
authorized  by  statute.  The  sherilT  cannot  on  a  subsequent  day 
accept  an  unsuccessful  bid  and  convey  the  property  without  a 
re-sale.  IG  Iowa,  519. 
Computing  time  of  re(Iemi)tioii.— In  computing  time  of 

redemption  of  real  estate  from  sale  under  execution,  the  first,  or 
day  of  sale,  should  be  excluded,  and  the  right  of  redemption 
exists  until  the  last  moment  of  the  same  day  of  the  next  year. 
23  Iowa,  527. 

XI.  INDORSEMENT  OF  LEVY,  AND  RETURN. 

The  sheriff  should,  as  before  remarked,  indorse  the  levy  on  the 
execution  at  the  time  of  making  the  same,  and  it  may  be  in  the 
following  form: 

IXDORSEMExNT  OF  LEVY. 
2Sro.  S9. 

State  of  Iowa,      ) 
County,     \ 

I,  A  B,  rtherifi"  of  said  county,  hereby  certify,  that  by  virtue  of 
the  within  execution  [  have  this  day  levied  upon  the  property 
described  in  the  annexed  inventory,  as  the  property  of  the 
defendant: 

INVENTORY. 

[Here  describe  the  property,  whether  real  or  personal.] 

Dated  this -day  of. . .  .18. . . 

A....  B....,  Sheriff. 

The  return  of  an  execution.— The  return  of  the  officer  to 

an  execution  should  show  every  act  done  by  him  by  virtue  of  the 
execution,  with  the  dates,  amounts,  etc. 

The  return  should  be  indorsed  on,  or  attached  to  the  execution, 
and  may  be  in  the  following  form: 

RETURN  TO  AN  EXECUTION. 
No.  90. 

State  of  Iowa 

County. 

I,  A  B,  sheriff  of  ....    county,  Iowa,  hereby  certify  and 

return  that  I  received  the  within  (or  annexed)  execution  on  the 

....  day  of  . . . .,  A.  D.  18. .,  at    ....   o'clock  in  the  . . .  .noon; 

that  by  virtue  thereof  I  did  on  the  ....  day  of   ,  A.  D.  18 .  . , 

levy  upon  the  property  of  the  said ,  defendant  therein 


INDOHSEMEXT   OF    LETT    EETUEN^.  141 

described  as  follows,  to-wit:  [describe  property].  And  after 
making  said  levy  I  gave  ....  weeks'  notice  of  the  time  and 
place  of  selling  said  ....  property,  by  posting  up  printed  notices 
thereof  in  three  public  places  within  my  county,  one  of  which  was 
at  the  place  where  the  last  District  (or  Circuit)  Court  was  held; 
and  by  causing  two  publications  of  said  notice  to  be  made  in  the 

,  a  newspaper  printed   at   . . . . ,  in   said  county  of   . . . . , 

immediately  before  said  sale;  that  on  the  ....  day  of  ...., 
A.  D.  18. .,  twenty  days  before  said  sale,  I  served  the  said  .... 
. . . . ,  who  was  in  the  actual  possession  of  said  ....  property, 
with  written  notice,  stating  that  I  had  levied  on  said  ....  prop- 
erty by  virtue  of  this  execution,  and  mentioning  the  time  and 
place  of  said  sale,  a  copy  of  which  is  attached  hereto,  and  marked 
Exhibit''  A,"  and  made  a  part  of  this  return.  [If  the're  has  been 
an  appraisement  of  property,  here  state  the  facts  and  attach  the 
return  of  the  appraisers  as  a  part  of  the  return,  marked 
Exhibit  ..]. 

And  further  certify  and  return  that,  in  pursuance  of  said 
notice,  I  did,  on  the  ....  day  of  ....  A.  D.  18.  .,  at  ... .  o'clock 
in  the  ....  noon  of  said  day,  that  being  the  time  appointed  for 
said  sale  at  . . . . ,  expose  to  sale  at  public  auction  the  property 
aforesaid,  to  the  highest  and  best   bidder  for  cash,  and  then  and 

theie  sold  [here  describe  the  property  sold],  to ,  for  the 

sum  of  ....  dollars,  he  being  the  highest  and  best  bidder  there- 
for, who  then  and  there  paid  to  me  the  said  sum  of  ....  dollars 
bid  by  hitn;  whereupon  I  executed  to  the  said ,  a  cer- 
tificate of  purchase,  (or  a  deed),  in  due  form  of  law  for  the  said 
....  estate ;  and  that  I  have  said  moneys  now  in  court,  to  render 

unto  the  said ,  (or,  in   case  of  payment  to  plaintiff  of 

amount  due  him,  so  state),  as  by  this  writ  I  am  commanded. 

A B  . . . ,  sheriff  of County. 

RETUEN  OF  SHERIFF'S  FEFS. 
FEE  bill: 

Serving  execution $    1.20 

Serving  notice  of  sale .50 

Copy 20 

Posting  notices 1.40 

Mileage 2.10 

Publication 7.00 

Selling  property 

Per  cent 

Certificate 

Total $V7^ 

A....  B....,  Sheriff. 

Modified  to  suit  other  cases.  The  above  form  can  be 
modified  to  suit  the  case  of  a  levy  on,  and  sale  of,  personal  prop- 
erty on  appraisement,  or  other  facts  in  the  case. 


142  RKPLKVIN. 


CHAPTER  XIII. 


OF  REPLEVIN;  OR  ACTION  FOR  THE  RECOVERY 
OF  SPECIFIC  PERSONAL  PROPERTY. 

I.     PROVISIONS  OF  THE  STATUTE. 

The  Code  provides  for  the  recovery  of  specific  personal  prop- 
erty; directs  what  the  petition  must  contain;  and  requires  that 
where  immediate  possession  is  desired,  the  plaintiff  shall  execute 
a  bond  with  sureties  to  be  approved  by  the  clerk. 

It  further  provides: 

Clerk  to  issue  orders.— Section  3230.  The  clerk  shall  thereupon  issue  an  order, 
under  his  hand  and  seal  of  the  court,  directed  to  the  sheriff,  requiring  him  to  take 
the  property  therein  described  and  deliver  the  same  to  the  plaintiff.  And  where 
the  petition  shows  that  the  property  has  been  wrongfully  removed  into  another  county 
from  the  one  in  which  the  action  is  commenced,  the  order  may  issue  from  the  county 
whence  the  property  was  so  wrongfully  taken,  and  may  be  served  in  any  county  where 
the  property  may  be  found  in  the  same  manner  and  with  like  effect  as  is  in  the  county 
where  suit  is  brought. 

Order  follow  property. — Sec.  3231.  When  any  of  the  property  is  removed  to 
another  county  after  the  commencement  of  the  action,  counterparts  of  the  proper 
order  may  issue  on  the  demand  of  the  plaintiff  to  such  other  county,  and  may  be 
executed  upon  such  goods  found  in  such  county,  and  farther  orders  and  the  neces- 
sary counterparts  thereof  may  issue  as  often  as  may  be  necessary. 

ORDER — EXECUTION   OF. 

Execution  of :  duty  of  officers.— Sec.  3332.  The  sheriff  must  forthwith  execute 
the  order  by  taking  possession  of  the  property  therein  mentioned,  if  it  is  found  in  the 
possession  of  the  defendant,  or  of  his  agent,  or  of  any  other  person  who  obtained 
possession  thereof  from  the  defendant,  directly  or  indirectly,  after  the  order  was 
placed  in  the  sheriff's  hands,  for  which  purpose  he  may  break  open  any  dwelling  house 
or  other  enclosure,  having  first  demanded  entrance  and  exhibited  his  authority,  if 
required. 

Defendant  examined  to  discover  property. — Sec  3233.  When  it  appears  by 
affidavit  that  the  property  claimed  has  been  disposed  of,  or  concealed  so  that  the 
order  cannot  be  executed,  the  court  or  judge  may  compel  the  attendance  of  the 


BOND    FOR   RETAINING   PJROPERTT,  ETC.  143 

defendant,  and  examine  him  on  oath  as  to  the  situation  of  the  property,  and  punish  a 
willful  obstruction  or  hindrance,  or  disobedience  of  the  order  of  the  court  in  this 
respect  as  in  case  of  contempt. 

Property  delivered  to  plaintiff.  Sec.  3234.  The  sheriff  having  taken  the 
property,  or  any  part  thereof,  shall  forthwith  deliver  the  same  to  the  plaintiff. 

Defendant  may  prevent  delivery. — Sec.  3235.  At  any  time  before  the  actual 
delivery  to  the  plaintiff,  the  defendant  may  stay  all  proceedings  under  the  aforesaid 
order  and  retain  the  property  in  his  own  possession,  by  executing  a  bond  to  the 
plaintiff,  with  sureties  to  be  approved  by  the  clerk  or  sheriff,  conditioned  that  he  will 
appear  in  and  defend  the  action,  and  deliver  the  property  to  the  plaintiff  if  he  recover 
judgment  therefor  in  as  good  condition  as  it  was  when  the  action  was  commenced, 
and  that  he  will  also  pay  all  costs  and  damages  that  may  be  adjudged  against  him  for 
the  taking  or  detention  of  the  property. 

Must  let  plaintiff  inspect  property. — Sec.  3236.  But  when  the  property  is  so 
retained  by  the  defendant,  he  shall  permit  the  sheriff  and  plaintiff  to  inspect  ttie 
same  ;  and  if  the  plaintiff  so  request,  the  .sheriff  shall  cause  the  property  to  be  exam- 
ined and  appraised  by  two  sworn  appraisers,  chosen  by  the  parties  to  the  action,  or  in 
their  default,  by  the  sheriff  himself,  in  the  manner  provided  for  other  cases  of  appraise- 
ment ;  and  he  shall  return  their  appraisement  with  the  execution. 

Eeturn  of  order. — Sec.  3237.  The  sheriff  must  return  the  order  on  or  before 
the  first  day  of  the  trial  term,  and  shall  state  fully  what  he  has  done  thereunder.  If 
he  has  taken  any  property  he  shall  describe  particularly  the  same.  And  if  he  has 
taken  a  bond  from  the  defendant  as  provided  in  the  preceding  section,  he  shall  file 
the  same  with  his  return. 

II.  BOND  FOR  RETAINING  THE  PROPERTY,  AND 
PROCEEDINGS  IN  THAT  CASE. 

The  bond  provided  for  by  the  statute  to  enable  the  defendant 
to  retain  the  property  may  be  in  the  following  form. 

BOND. 
No.  91. 

Knoio  all  men  by  these  presents :  That  we,  C  D,  principal,  and 
E  F  and  G  H,  sureties,  are  held  and  firmly  bound  unto  1  J,  in  the 
sum  of  ....  dollars. 

The  condition  of  this  obligation  is  such,  that  whereas  A  B, 
sheriff  of  ....  county,  Iowa,  by  virtue  of  a  writ  issued  by  the 
clerk  of  the  ....  Court  of  said  county,  in  a  certain  cause  wherein 
the  said  I  J,  is  plaintiff,  and  the  said  O  D,  is  defendant,  and  to 
said  sheriff  directed  and  delivered,  requiring  him  to  take  the 
property  therein  described,  to-wit:  [Here  describe  each  article  of 
property,]  and  deliver  the  same  to  said  plaintiff;  and  whereas  the 
saifl  C  D,  desires  to  retain  possession  of  said  property: 

Now  therefore,  if  the  said  C  D,  will  appear  in  and  defend  said 
action  and  <leliver  said  property  to  said  plaintiff  if  he  recover 
judgment  therefor,  in  as  good  a  condition  as  it  was  when  said 
action  was  commenced,  and  will  also  pay  all  costs  and  damages 
that  may  be  adjudged  against   him  for  the  taking  or  detention  of 


144  REPLEVIN". 

said  property,  then  this  obligation  to  be  void,  otherwise  to  be  and 
remain  in  full  force  and  virtue. 
Dated  this   ....  day  of  . . . . ,  18 . . 

C . . . .  D . . . . ,  Principal. 

E....   F.. 


p  TT  r  Sureties. 

Who  to  approve  the  bond. — The  bond  may  be  approved 
by  the  clerk  or  sheriff,  and  when  approved  by  the  sheriff,  it  may 
be  in  the  following  form: 

No.  Oa. 

I  hereby  approve  of  the  within  bond  and  the  sureties  thereto. 

Dated  this ....  day  of . .  .  .  18 .  . 

A  ...  B....,  Sheriff. 

Amount  of  bond  and  appraisement. — The  amount  of  the 

bond  should  be  twice  the  value  of  the  property  taken  or  sought 
to  be  taken,  and  when  the  ])roperty  is  so  retained  by  the  defend- 
ant he  must  permit  the  sheriff  and  plaintiff  to  inspect  the  same, 
and  if  the  plaintiff  requests  it,  the  sheriff  should  cause  the  j^rop- 
erty  to  be  examined  and  appraised  by  two  sworn  appraisers  chosen 
by  the  parties  to  the  action,  or  in  case  of  their  default,  by  the 
sheriff,  in  the  manner  provided  for  other  cases  of  appraisement, 
and  he  is  required  to  return  their  appraisement  with  the  writ. 

Summons,  oath  and  report.— The  form  of  summons  and 
oath  may  be  the  same  as  No.  73  and  74,  and  of  their  report,  the 
same  as  in  cases  of  appraisement  on  execution,  as  to  which  see 
form  No.  86. 

The  appraisement  a  guide —The  appraisement  may  be 
a  guide  to  the  sheriff  in  fixing  the  amount  of  the  bond;  and  in 
case  there  is  no  appraisement  the  sheriff  should  fix  the  penalty 
of  the  bond  in  double  the  value  of  the  property,  according  to  his 
best  information  and  judgment. 

III.     SHERIFF'S  RETURN. 

SHERIFF'S  RETURN. 
JSTo.  93. 

State  of   Iowa,      \  ^^ 

....    County,     f ' 
I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that 


DIRECTIONS   OF   THE    STATUTES.  145 

I  received  the  within  writ  for  service  on  the  ....  day  of  . . . . , 
18. .,  that  on  the  same  day,  (or  some  other  day),  by  virtue  thereof 
I  took  possession  of  the  following  property  in  said  county, 
described  in  said  writ,  to- wit:  [Here  give  a  particular  description 
of  the  property  taken,]  and  forthwith  delivered  the  same  to  C  D, 
the  plaintiif  therein  named  pursuant  to  the  command  thereof,  and 
now  return  said  writ  duly  executed. 
Dated  this  ....  day  of  . . . . ,  18 . . 

A....  B....,  Sheriff. 

If  all  the  property  is  not  found. — If  all  the  property  can- 
not be  found,  the  return  to  the  writ  should  show  that  fact,  and  the 
above  form  can  be  modified  to  suit  that  case. 

EETURN  WHERE  THE  DEFENDANT  HAS  GIVEN  BOND. 
No.  94.. 

State  of   Iowa,      ) 
County,       f  ■    ■ 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return, 
that  I  received  the  within  wit  for  service  on  the  ....  day  of  . . . . , 
18 . . ;  that  on  the  ....  day  of  .  .  . . ,  18 .  . ,  by  virtue  thereof  I 
took  possession  of  the  property  therein  described,  (or  if  a  portion 
of  the  same,  so  state  and  particularly  describe  it),  in  said  county; 
that  on  the  same  day,  (or  any  other  day,  naming  it),  the  said  C 
D,  the  defendant  therein  named,  for  the  purpose  of  staying  fur- 
ther proceedings  under  said  writ,  and  retaining  possession  of  said 
propert^^,  executed  a  bond  to  the  said  E  F,  plaintiff  therein  named, 
with  sureties  approved  by  me,  (or  in  case  the  bond  and  sureties 
are  approved  by  the  clerk,  so  state),  in  a  penal  sum  of  double 
the  value  of  said  property  as  appraised  by  two  sworn  appraisers 
chosen  by  said  parties,  (or  by  me,  they  having  failed  to  choose 
said  appraisers),  which  bond  is  hereto  annexed  and  returned, 
marked  "  Exhibit  A,"  with  the  written  return  of  said  appraisers 
made  to  me,  hereto  annexed  and  marked  "  Exhibit  B." 

Whereupon  I  released  said  property  and  delivered  the  same  to 
the  defendant,  and  I  now  return  this  writ  with  my  doings  in  the 
premises  as  aforesaid. 

Dated  this  ....  day  of  . . .  .,  18. .. 

A....  B....,  Sheriff. 

IV.     DIRECTIONS  OF  THE  STATUTES. 

The  statute  directs  the  officer  charged  with  the  execution  of 
the  writ,  to  take  possession  of  the  property  if  found  in  the  pos- 
session of  the  defendant  or  his  agent,  or  any  other  person  who 
obtained  possession  thereof  directly  or  indirectly  from  the  defend- 
ant after  the  writ  was  placed  in  the  sheriff 's  hands. 
10 


1-46  BEPLEVIN. 

The  officer  is  justified  in  obeying  the  commands  of  the  writ, 
if  genuine  and  regular  on  its  face.  This  rule  applies  to  all  pro- 
cess.    Conk.  Tr.,  247,  1  Ed. 

Verdict  of  the  jury  on  the  trial. — The  Code  provides 

that  on  the  trial  of  the  action  the  jury  must  assess  the  value  of  the 
property,  as  also  damages  for  the  taking  or  detention,  whenever 
by  their  verdict  there  will  be  a  judgment  for  the  recovery  or 
return  of  the  property;  and  when  requested  to  do  so  by  either  party, 
they  must  find  the  value  of  each  article  thereof. 

The  Code  further  provides: 

Form  of  judgment. — Section  3239.  The  judgment  shall  determine  which  party  is 
entitled  to  the  possession  of  the  property,  and  shall  designate  his  right  therein  and  if 
such  party  have  not  the  possession  thereof,  shall  also  determine  the  value  of  the  right 
of  such  party,  which  right  shall  be  absolute  as  to  an  adverse  party  having  no  right  in 
such  property,  and  shall  also  award  such  damages  to  either  party  as  he  may  be 
entitled  to  for  illegal  detention  of  such  property. 

Execution  :  form  of. — Sec.  3240.  The  execution  shall  require  the  sheriff  to  deliver 
the  possession  of  the  same,  particularly  describing  it,  to  the  party  entitled  thereto,  and 
may,  at  the  same  time,  require  the  sheriff  to  satisfy  any  costs,  damages,  or  rents  and 
profits,  with  interest,  recovered  by  the  same  judgment,  out  of  the  property  of  the 
party  against  whom  it  was  rendered  subject  to  execution,  and  the  value  of  property 
for  which  judgment  was  recovered  to  be  specified  therein,  if  a  delivery  thereof  cannot 
be  had,  and  shall  in  that  respect  be  deemed  an  execution  against  property. 

Plaintiff's  option  as  to  what  lie  will  take. — Sec.  3241.  If  the  party  found  to 
be  entitled  to  the  property,  be  not  already  in  possession  thereof  by  delivery  under 
the  provisions  of  this  chapter,  or  otherwise,  he  may,  at  his  option,  have  execution  for 
the  specific  delivery  of  the  property,  or  for  the  value  thereof  as  determined  by  the 
jury.  And  if  any  article  of  the  property  cannot  be  obtained  on  execution,  he  may 
take  the  remainder  with  the  value  of  the  missing  articles. 

Judgment  on  bond. — Sec.  3242.  When  property  for  which  a  bond  has  been  given, 
as  hereinbefore  provided,  is  not  forthcoming  to  answer  the  judgment,  and  the  party 
entitled  thereto  elects  to  take  judgment  for  the  value  thereof,  such  judgment  may  be 
entered  against  the  principal  and  sureties  in  the  bond. 

When  property  has  been  concealed. — Sec.  3243.  When  it  appears  by  the  return 
of  the  officer,  or  by  the  affidavit  of  the  plaintiff,  that  any  specific  property  which  has 
been  adjudged  to  belong  to  one  party,  has  been  concealed  or  removed  by  the  other, 
the  court  or  a  judge  may  require  him  to  attend  and  be  examined  on  oath  respecting 
such  matter,  and  may  enforce  its  order  in  this  respect  as  in  the  case  of  contempt. 

Sec.  3245,  A  money  judgment  taken  under  the  provisions  of  this  chapter 
in  lieu  of  property  exempt  from  execution,  shall  also  be,  to  the  same  extent,  exempt 
from  execution  and  from  all  set-off  or  diminution  either  by  the  adverse  party  or  by 
any  other  person,  and  such  exemption  may,  at  the  option  of  the  party,  be  stated  in 
the  judgment. 


PROVISIONS   OF   THE   CODE.  147 


CHAPTEH  XIY. 


PROPERTY  TAKEN  FOR  INTERNAL  IMPROVE- 
MENT. 

I.     PROVISIONS  OF  THE   CODE. 

The  Code  provides  for  the  taking  of  private  property  for  works 
of  internal  improvement,  and  for  its  condemnation  for  this  pur- 
pose as  follows: 

MANNER    OF    CONDEMNATION. 

Sheriff  to  summon  jury. — Section  1244.  If  the  owner  of  any  real  estate,  neces- 
sary to  be  taken  for  either  of  the  purposes  mentioned  in  the  three  preceding  sections, 
refuse  to  grant  the  right  of  way,  or  other  necessary  interest  in  said  real  estate  required 
for  such  purposes,  or,  if  the  owner  and  the  corporation  cannot  agree  upon  the  com- 
pensation to  be  paid  for  the  same,  the  sheriff  of  the  county  in  which  said  real  estate 
may  be  situated,  shall,  upon  the  application  of  either  party,  appoint  six  disinterested 
freeholders  of  said  county,  not  interested  in  a  like  question,  who  shall  inspect  said 
real  estate  and  assess  the  damages  which  said  owner  will  sustain  by  the  appropriation 
of  his  land  for  the  use  of  said  corporation,  and  make  report  in  writing  to  the  sheriff  of 
said  county,  and  if  said  corporation  shall,  at  any  time  before  it  enters  upon  said  real 
estate  for  the  purpose  of  constructing  said  railway,  pay  to  said  sheriff  for  the  use  of 
said  owner,  the  sum  so  assessed  and  returned  to  him  as  aforesaid,  it  may  construct 
and  maintain  its  railway  over  and  across  such  premises. 

Jury  to  assess  damages.— Skc.  1245.  The  application  to  the  sheriff  shall  be  in 
writing,  and  the  freeholders  appomtcd  shall  be  the  commissioners  to  assess  all  dam- 
ages to  the  owners  of  real  estate  in  said  county,  and  said  corporation,  or  the  owner 
of  any  land  therein,  may,  at  any  time  after  their  appointment,  have  the  damages 
assessed  in  the  manner  herein  prescribed  by  giving  the  other  party  five  days  notice 
thereof  in  writing,  specifying  therein  the  day  and  hour  when  such  commissioner  will 
view  the  premises,  which  shall  be  served  in  the  same  manner  as  original  notices. 

Uinor  or  insane  owner. — Sec.  1246.  If  the  owner  of  any  lands  is  a  minor, 
insane,  or  other  person  under  guardianship,  the  guardian  of  such  minor,  insane,  or 
other  person,  may,  vmdcr  the  direction  of  the  circuit  judge,  agree  and  settle  with  said 
corporation  for  all  damages  by  reason  of  the  taking  of  such  lands  for  any  of  the  pur- 
poses aforesaid,  and  may  give  valid  conveyances  of  such  land. 

Notice  to  non-resident  owner.— Sec.  1247.  If  the  owner  of  such  lands  is  a 
non-rciidcnt  of  the  couniy  in  which    the  same  are  situate,  no  demand  of  tlic  right  of 


l48     PROPERTY  TAKEN^  FOR  INTERNAL  IMPROYEMENT. 

way,  or  other  purpose  for  which  such  lands  are  desired,  shall  be  necessary,  except 
the  publication  of  a  notice  which  may  be  in  the  following  form : 

Notice. — For  the  appropriation  of  lands  for  railway  purposes.  To  (here  name 
each  person  whose  land  is  to  be  taken  or  affected,)  and  all  other  persons  having  any 
interest  in,  or  owning  any  of  the  following  real  estate,  [here  describe  the  land  by  its 
congressional  numbers  in  tracts  not  exceeding  one-sixteenth  of  a  section,  or,  if  the 
land  consists  of  lots  in  a  town  or  city,  by  the  numbers-of  the  lot  and  block.]     You  are 

hereby  notified  that  the has  located  its  railway  over  the  above 

described  real  estate,  and  desires  the  right  of  way  over  the  same,  to  consist  of  a  strip 
or  belt  of  land  .  .  feet  in  width,  through  the  center  of  which  the  center  line  of  said 
railway  will  run,  together  with  such  other  land  as  may  be  necessary  for  bermes,  waste 
banks  and  borrowing  pits,  and  for  wood  and  water  stations,  (or  desires  the  same  for 
the  purposes  mentioned  in  sections  twelve  hundred  and  forty-two,  and  twelve  hundred 
and  forty-three  of  this  chapter,  as  the  case  may  be)  and  unless  you  proceed  to  have 

the  damages  to  the  same  appraised  on  or  before    .    .    .    day  of A.  D.,  18  .  , 

(which  time  must  be  at  least  four  weeks  after  the  first  publication  of  the  notice,)  said 

company  will  proceed  to  have  the  same  appraised  on  the    .    .    .    day  of 

(which  must  be  at  least  eight  weeks  after  the  first  publication  of  the  notice),  at  which 
time  you  can  appear  before  the  appraisers  that  may  be  selected. 

Railway  Company. 

By attorney,  or agent. 

Notice  published. — Sec.  1248.  Said  notice  shall  be  published  in  some  news- 
paper in  the  county,  if  there  be  one,  if  there  is  none,  then  in  a  newspaper  published 
in  the  nearest  county  through  which  the  proposed  railway  is  to  run,  for  at  least  eight 
successive  week,  prior  to  the  day  fixed  for  the  appraisement  at  the  instance  of  the 
corporation. 

Appraisement:  how  made  and  returned. — Sec.  1249.  At  the  time  fixed  in 
either  aforesaid  notices,  the  appraisement  may  be  made  and  returned  in  tracts  larger 
than  forty  acres,  and  all  the  lands  appearing  of  record  to  belong  to  one  person,  and 
lying  in  one  tract,  may  be  included  in  one  appraisement  and  return,  unless  the  agent 
or  attorney  of  the  corporation,  or  the  commissioners,  has  actual  knowledge  that  the 
tract  does  not  belong  wholly  to  the  person  in  whose  name  it  appears  of  record  ;  and 
in  case  of  such  knowledge,  the  appraisement  shall  be  ma^de  of  the  different  parcels,  as 
they  are  known  to  be  owned. 

Where  dwelling  house,  garden,  or  orchard  is  affected. — Sec.  1250.  If  it 
appears  from  the  finding  of  the  commissioners  that  the  dwelling  house,  out-houses, 
orchard  or  garden,  of  the  owner  of  any  land  taken  will  be  otherwise  injuriously 
affected  by  any  dam  or  reservoir  to  be  constructed  under  section  twelve  hundred  and 
forty-two  of  this  chapter,  such  dam  shall  not  be  erected  until  the  question  of  such 
overflowing  or  other  injury  has  been  determined  upon  appeal  in  favor  of  the  corpo- 
ration, 

Talesmen. — Sec.  1251.  In  case  of  the  death,  absence,  neglect,  or  refusal,  of  any 
of  said  freeholders  to  act  as  commissioners  as  aforesaid,  the  sheriff  shall  summon 
other  freeholders  to  complete  the  panel. 

Costs :  how  paid. — Sec.  1252.  The  corporation  shall  pay  all  the  costs  of  the 
assessment  made  by  the  commissioners  and  those  occasioned  by  the  appeal,  unless  on 
the  trial  thereof  a  less  amount  of  damages  is  awarded  than  "was  allowed  by  the  com- 
missioners. 

Commissioners' report  maybe  recorded. — Sec.  1253.  The  report  of  the  com- 
missioners, where  the  same  has  not  been  appealed  from,  and  the  amount  of  damages 


PROVISIONS    OF    THE    CODE.  149 

assessed  and  costs  have  been  deposited  with  the  sheriff,  or,  if  an  appeal  is  taken  and 
the  amount  of  damages  assessed  on  the  trial  thereof  has  been  paid  to  the  sheriff,  may 
be  recorded  in  the  record  of  deeds  in  the  county  where  the  land  is  situate,  and  such 
record  shall  be  presumptive  evidence  of  title  in  the  corporation  to  the  property  so 
taken,  and  shall  constitute  constructive  notice  of  the  rights  of  such  corporation 
therein. 

APPEALS. 

How  taken. — Sec.  1254.  Either  party  may  appeal  from  such  assessment  of  dam- 
ages to  the  circuit  court  within  thirty  days  after  the  assessment  is  made,  by  giving  the 
adverse  party,  or,  if  such  party  is  the  corporation,  its  agent  or  attorney,  and  the 
sheriff,  notice  in  writing  that  such  appeal  has  been  taken ;  the  sheriff  shall  there- 
upon file  a  certified  copy  of  so  much  of  the  appraisement  as  applies  to  the  part 
appealed  from,  and  said  court  shall  thereupon  take  jurisdiction  thereof  and  try  and 
dispose  of  the  same  as  in  actions  by  ordinary  proceedings.  The  land  owner  shall  be 
plaintiff  and  the  corporation  defendant. 

Not  to  delay  work  if  amount  assessed  is  deposited  with  sheriff. — Sec.  1255. 
An  appeal  shall  not  delay  the  prosecution  of  the  work  upon  said  railway,  if  said  cor- 
poration pays  or  deposits  with  the  sheriff  the  amount  assessed  by  the  commissioners ; 
said  sheriff  shall  not  pay  such  deposit  over  to  the  person  entitled  thereto  after  the 
service  of  notice  of  an  appeal,  but  shall  retain  the  same  until  the  determination 
thereof. 

When  harred. — Sec.  1256.  An  acceptance  by  the  land  owner  of  the  damages 
awarded  by  the  commissioners  shall  bar  his  right  to  appeal. 

Trial  of:  judgment. — Sec.  1257.  On  the  trial  of  the  appeal,  no  judgment  shall 
be  rendered  except  for  costs ;  the  amount  of  damages  shall  be  ascertained  and 
entered  of  record,  and,  if  no  money  has  been  paid  or  deposited  with  the  sheriff,  the 
corporation  shall  pay  the  amount  so  ascertained,  or  deposit  the  same  with  the  sheriff 
before  entering  upon  the  premises. 

Sec.  1258.  If,  on  the  trial  of  the  appeal,  the  damages  awarded  by  the  commis- 
sioners are  increased,  the  corporation  shall  pay  or  deposit  with  the  sheriff  the  whole 
amount  of  damages  awarded  before  entering  on,  or,  in  any  manner  whatever,  using 
or  controlling  the  premises.  And  said  sheriff,  upon  being  furnished  with  a  certified 
copy  of  such  assessment,  may  remove  said  corporation,  its  agents,  servants,  or  con- 
tractors, from  said  premises  unless  the  amount  of  the  assessment  is  forthwith  paid  or 
deposited  with  him. 

Sec.  1259.  If  the  amount  of  the  damages  awarded  by  the  commissioners  is 
decreased  on  the  trial  of  the  appeal,  the  amount  assessed  on  the  trial  of  such  appeal 
only  shall  be  paid  the  land  owners. 

NON-USER. 

By  railway  corporations  of  right  of  way.— Sec.  1260.  In  any  case  where  a 
railway,  constructed  in  whole  or  in  part,  has  ceased  to  be  operated  or  used  for  more 
than  ten  years,  or  in  any  case  where  the  construction  of  a  railway  has  been  com- 
menced, and  work  on  the  same  has  ceased  for  more  than  ten  years,  and  the  same 
remains  unfinished,  it  shall  be  deemed  and  taken  that  the  corporation  or  person  thus 
in  default  has  abandoned  all  right  and  privilege  over  so  much  as  remains  unfinished 
as  aforesaid. 

How  right  of  way  may  be  oondemned.— Sec.  1261.  In  every  such  case  of 
abandonment,  any  other  corporation  may  enter  upon  such  abandone<l  work,  or  any 
pari  thereof,  and  acquire  the  right  of  way  over  the  same,  and  the  right  to  any  unfin- 
ished work  or  grading  found  tlicreon  and  the  title  thereto,  by  proceeding  in  the  manner 


150  PEOPEKTY    TAKEN    FOR    INTERxVAL    IMPROVEMENT. 

provided,  and  conforming  in  all  particulars  as  near  as  may  be  to  the  provisions 
of  this  chapter ;  but  parties  who  have  previously  received  compensation  in  any  form 
for  the  right  of  way  on  the  line  of  such  abandoned  railway,  which  has  not  been 
refunded  by  them,  shall  not  be  permitted  to  recover  the  second  time,  but  the  value  of 
such  road-bed  and  right  of  way,  excluding  the  work  done  thereon,  when  taken  for  a 
new  company,  shall  be  assessed  to  the  former  company  or  its  legal  representative. 

STATE  MAT  CONDEMN. 

How  done  and  for  what  purpose. — 1271.  Whenever  in  the  opinion  of  the  gov- 
ernor, the  public  interest  requires  the  construction  of  any  drains,  sewers,  or  other 
conveniences  for  the  benefit  of  the  penitentiary,  hospitals  for  the  insane,  or  any  other 
institutions  of  the  state,  upon  or  across  lands  being  private  property,  the  same  pro- 
ceedings may  be  had  in  the  name  of  the  state  as  provided  in  this  chapter,  and  for  that 
purpose  the  state  shall  be  considered  a  person,  and  the  proceedings  shall  be  con- 
ducted by  the  district  attorney  of  the  district  in  which  the  land  is  situated  whenever 
directed  by  the  governor,  or,  the  governor  may  appoint  some  other  person  for  that 
purpose. 

Damages :  how  certified  and  paid. — Sec.  1272.  Whenever  the  amount  of  the 
damages  contemplated  in  the  preceding  section  is  finally  determined,  the  sheriff  or 
clerk,  as  the  case  may  be,  shall  certify  the  amount  thereof  to  the  governor,  who 
shall,  by  an  order  indorsed  thereon,  direct  the  payment  of  the  same,  and  the  auditor 
of  state  shall  issue  a  warrant  on  the  treasury  for  the  amount,  which  shall  be  paid  with 
any  money  not  othersvise  appropriated.  When  the  money  is  paid  to  the  sheriff  or 
person  entitled  thereto,  the  state,  through  its  propter  agent  or  officer,  may  enter  on 
the  premises  and  construct  the  desired  work. 

11.     MANNER    OF    SUMMONING    APPRAISERS     AND 
APPRAISEMENT. 

The  sheriff  in  this  case  may  summon  appraisers  in  the  same 
manner  provided  for  an  appraisement  of  property  on  execution, 
and  the  form  of  appraisement  and  the  oath  used  for  that  purpose, 
with  the  change  which  will  be  suggested,  can  be  used  in  cases 
under  the  above  provisions.  See  form  No.  86.  For  form  of 
summons,  see  No.  73. 

APPLICATION  FOR  THE  APP0INT3IENT  OF  APPRAISERS. 

No.   95. 

To  the  Sheriff  of  ... .  county.,  loioa  : 

You  are  hereby  required  to  appoint  six  disinterested  free- 
holders of  said  county,  not  interested  in  a  like  question,  to 
inspect  the  following  described  real  estate,  to-wit  :  [Here  insert  a 
description  of  the  land  to  be  condemned,]  and  assess  the  damages 
the  owner  thereof  will  sustain  by  reason  of  the  taking,  holding 
and  condemnation  thereof,  by  the  ....  railway  company,  in  the 
construction  and  operation  of  its  railway  over  the  same. 

C  D,  owner.,  (or  ....  Railway  Company, 

J5y  . . . .,  Attorneij.,)  (or  Agent). 

The  application  may  be  made  by  either  party  interested. 


MATTN^ER   OF    SXJMMONING   APPRAISERS,   ETC. 


151 


FORM  OF  NOTICE  OF  ASSESSMENT  OF  DAIVIAGES. 
No.  96. 

To  C . . . .  J) ,  (the  owner  of  the  land,  or  the    ....    Railway- 
Company,  as  the  case  may  require.) 

You  are  hereby  notified  that  the  commissioners  appointed  by 
the  sheriff  of  ....  county,  Iowa,  for  that  purpose,  will,  on  the 
....  day  of  . . . . ,  18 . . ,  at  . .  o'clock,  . .  m.,  view  and  inspect 
the  lands  owned  by  you,  (or  me,)  and  described  as  follows: 
[Here  describe  the  lands  to  be  condemned],  and  assess  the  dam- 
ages that  will  be  sustained  by  you  (or  me,  as  the  case  may  be,)  by 
reason  of  the  taking,  holding  and  condemnation  of  the  same  by 
the  ....  Railway  Company,  for  the  purpose  of  constructing  and 
operating  its  railroad  across  said  land,  (or  for  the  location,  con- 
struction and  convenient  use  of  its  railway  on,  across  or  near  said 
land.  ....    Railway  Company, 

By  its  Attorney  {or  Agent,  or  C  Z>,  owner  of  said  land,  as  the 
case  may  be.) 

Report  of  the  Appraisers. — The  report  of  the  appraisers 
should  be  made  to  the  sheriff  in  writing. 


FOEM  OF  APPEAISEES'  KEPOET. 
No.  97. 

State  of  Iowa,      ) 
County,   ) 

To  A. . . .  B. . . .,  Sheriff  of  said  county : 

We,  the  undersigned,  appraisers  appointed  by  you  to  inspect 
the  following  described  real  estate  :  [Here  describe  the  lands], 
and  assess  the  damages  the  owner  thereof  will  sustain,  by  reason 
of  the  taking,  holding  and  condemnation  thereof  by  the  .... 
Railway  Company,  for  the  operation,  construction  and  convenient 
use  of  its  railway,  (or  for  a  right  of  way,  or  for  wood  and  water 
stations,  or  for  dams  and  reservoirs,  etc.,  as  the  case  may  be,)  on 
or  over  said  land,  do  hereby  report  thereon,  as  follows  : 

Having  been  first  duly  sworn  as  such  appraisers,  we,  on  the 
....  day  of  ....,18..,  at  ..  o'clock,  ..  m.,  of  said  day,  pro- 
ceeded to  inspect  said  real  estate,  and  thereupon  assessed  said 
damages  at  the  sum  of  $. 


Dated  this 


day  of  18, 


C... 

.   D...., 

E... 

.    F...., 

G.. 

.  H...., 

I  .. 

..   J...., 

K.. 

..  L...., 

Fees — 

O.. 

.   P...., 

C... 

.  D.. 

. ,  one  day,  $2.00. 

C... 

.  D.. 

. ,  five  miles,     .50. 

E... 

.  F... 

. ,  one  day,     2.00. 

E... 

.  F... 

. ,  six  miles,     .GO. 

>  A2)praisers. 


152     PROPERTY  TAKEN  FOR  INTERNAI.  IMPROVEMENT. 

Noil-Resideilt  owners. —  In  the  case  of  non-resident 
owners,  a  form  of  notice  is  given  in  the  (Jode  for  publication; 
and  the  commissioners  could  proceed  in  that  case  to  appraise  the 
damages  of  the  several  owners,  as  specified  in  the  notice,  and 
reference  in  their  report  might  be  made  to  this  notice  for  a 
description  of  the  land  to  be  condemned,  and  the  assessment  of 
the  damages  of  each  owner  for  his  land  appropriated,  made  in 
one  report,  and  the  notice  aforesaid  might  be  attached  thereto. 

Session  laws. — Chapter  34  of  the  Session  Laws  of  1874,  pro- 
vide additional  powers  and  duties  for  the  sheriff,  as  follows: 

Quarry  or  mine  owners  may  have  public  way  established.— Section  1.  Be  it 
enacted  by  the  General  Assembly  of  the  State  of  Jowa,  That  any  person,  co-partner- 
ship, joint-stock  association,  or  corporation,  owning,  leasing,  or  possessing  any  lands 
having  thereon  or  thereunder  any  coal,  stone,  lead,  or  other  mineral,  may  have  estab- 
lished over  the  land  of  another  a  public  way  from  any  stone-quarry,  coal,  lead,  or 
other  mine,  to  any  railway  or  highway,  not  exceeding  (except  by  the  consent  of  the 
owner  of  the  land  to  be  taken)  fifty  feet  in  width.  When  said  road  shall  be  con- 
structed, it  shall,  when  passing  through  inclosed  lands,  be  fenced  on  both  sides  by  the 
person  or  corporations  causing  said  road  to  be  established, 

Proceedings  to  condemn  right  of  way. — Sec.  2.  If  the  owner  of  any  real 
estate,  necessary  to  be  taken  for  the  purposes  mentioned  in  this  act,  refuse  to  grant 
the  right  of  way,  or  if  such  owner  and  the  person,  partnership,  joint-stock  associa- 
tion, or  corporation  seeking  to  have  such  way  established,  cannot  agree  upon  the 
compensation  to  be  paid  for  the  same,  the  sheriff  of  the  county  in  which  said  real 
estate  may  be  situated  shall,  upon  the  application  of  either  party,  appoint  six  disin- 
terested freeholders  of  the  county,  not  interested  in  a  like  question,  who  shall  inspect 
said  real  estate,  and  assess  the  damage  which  said  owner  will  sustain  by  the  appro- 
priation of  said  land  for  such  public  way,  and  make  a  report  in  writing  to  the  sheriff 
of  said  county,  and  if  the  applicant  for  such  public  way  shall  at  any  time  before  enter- 
ing upon  said  real  estate,  for  the  purpose  of  constructing  such  way,  pay  to  said  sheriff, 
for  the  use  of  said  owner,  the  sum  so  assessed  and  returned  to  him,  as  aforesaid,  said 
highway  may  be  at  once  constructed  and  maintained  over  and  across  said 
premises. 

Code  applied  to  this  act. — Sec.  3.  In  proceeding  under  this  act,  the  application 
to  the  sheriff,  the  duty  of  commissioners,  the  time  and  manner  of  assessing  the  dam- 
ages, the  giving  of  notice  thereof  to  residents  and  non-residents,  the  power  of  guar- 
dians to  settle  and  convey,  the  making  and  returning  of  appraisement,  the  selection 
of  talesmen,  the  payment  of  the  costs  of  assessment,  the  report  of  the  commisioners, 
the  recording  thereof,  the  right  of  appeal,  the  proceedings  relating  thereto,  the  result 
of  non-user,  the  rights  and  duties  as  to  the  other  highways,  are  and  shall  be  the  same 
as  provided  in  the  sections  of  the  code  numbered  twelve  hundred  and  forty-five  to 
and  including  twelve  hundred  and  sixty-eight,  and  the  provisions  of  all  of  said  sec- 
tions, so  far  as  applicable,  are  declared  to  be  a  part  of  this  act,  except  that  the  report 
of  the  commissioners,  and  record  thereof,  shall  confer  no  title  to  the  applicant  for  the 
land  taken  for  the  highway,  but  shall  be  presumptive  evidence  of  the  establishment 
of  such  way. 


MANNER   OF   SUMMONING    APPEAISEKS,  ETC.  153 

Persons  oondemning  may  establish  railway. — Sec.  4.  Any  owner,  lessee,  or 
possessor  of  lands  having  coal,  stone,  lead,  or  other  mineral  thereon,  who  has  paid 
the  damages  assessed  for  highways  established  under  this  act,  may  construct,  use, 
and  maintam  a  railway  on  such  way,  for  the  purpose  of  reaching  and  operating  any 
quarry  or  mine  on  such  land,  and  of  transporting  the  products  thereof  to  market. 
In  the  giving  of  the  notices  required  by  this  act,  the  applicant  shall  state  whether  a 
railway  is  to  be  constructed  and  maintained  on  the  way  sought  to  be  established ; 
and  if  it  be  so  stated  the  jury  shall  consider  that  fact  in  the  assessment  of  damages. 


154  FORECLOSURE   OF  CHATTEL  MORTGAGES. 


CHAPTER  XY. 


THE  FORECLOSURE  OF  CHATTEL  MORTGAGES. 

L     SHERIFF'S  DUTY  ON  CHATTEL  MORTGAGE  FORE- 
CLOSURE. 

The  Code  provides  for  a  sale  of  personal  property  under 
chattel  mortgages,  as  follows  : 

Of  personal  property :  how  foreclosed. — Section  3307.  Any  mortgage  of  per- 
sonal property  to  secure  the  payment  of  money  only,  and  where  the  time  of 
payment  is  therein  fixed,  may  be  foreclosed  by  notice  and  sale  as  hereinafter  pro- 
vided, unless  a  stipulation  to  the  contrary  has  been  agreed  upon  by  the  parties,  or 
may  be  foreclosed  by  action  in  the  proper  court. 

Notice. — Sec.  3308.  The  notice  must  contain  a  full  description  of  the  property 
mortgaged,  together  with  the  time,  place  and  terms  of  the  sale. 

Service :  on  whom. — Sec.  3309.  Such  notice  must  be  served  on  the  mortgagor, 
and  upon  all  purchasers  from  him  subsequent  to  the  execution  of  the  mortgage,  and 
all  persons  having  recorded  liens  upon  the  same  property  which  are  junior  to  the 
mortgage,  or  they  will  not  be  bound  by  the  proceedings. 

Betnrn. — Sec.  3310.  The  service  and  return  must  be  made  in  the  same 
manner  as  in  the  case  of  the  original  notice  by  which  civil  actions  are  commenced, 
except  that  no  publication  in  the  newspapers  is  necessary  for  this  purpose,  the 
general  publication  directed  in  the  next  section  being  a  sufficient  service  upon  all  the 
parties  in  cases  where  service  is  to  be  made  by  publication. 

Notice  of  sale. — Sec.  3311.  After  notice  has  been  served  upon  the  parties,  it 
must  be  published  in  the  same  manner,  and  for  the  same  length  of  time  as  is  required 
in  cases  of  the  sale  of  like  property  on  execution,  and  the  sale  shall  be  conducted  in 
the  same  manner. 

Title  to  purchaser. — Sec.  3312.  The  purchaser  shall  take  all  the  title  and  inter- 
est on  which  the  mortgage  operated. 

Bill  of  sale. — Sec.  3313.  The  sheriff  conducting  the  sale  shall  execute  to  the 
purchaser  a  bill  of  sale  of  the  personal  property,  which  shall  be  effectual  to  carry  the 
whole  title  and  interest  purchased. 

Evidence  of  service  perpetuated. — Sec.  3314.  Evidence  of  the  service  and  pub- 
lication of  the  notice  aforesaid,  and  of  the  sale  made  in  accordance  therewith, 
together  with  any  postponement  or  other  material  matter,  may  be  perpetuated  by 
proper  affidavits  thereof. 


sheriff's  duty.  155 

Sec.  3315.  Such  affidavits  shall  be  attached  fo  the  bill  of  sale,  and  shall  then 
be  receivable  in  evidence  to  prove  the  facts  they  state 

Validity  of  sales. — Sec.  3316.  Sales  made  in  accordance  with  the  above  require- 
ments, are  valid  in  the  hands  of  a  purchaser  in  good  faith,  whatever  may  be  the 
equities  between  the  mortgagor  and  mortgagee. 

Contest:  how  effected. — Sec.  3317.  The  right  of  the  mortgagee  to  foreclose,  as 
well  as  the  amount  claimed  to  be  due,  may  be  contested  by  any  one  interested  in  so 
doing,  and  the  proceeding  may  be  transferred  to  the  district  or  circuit  court,  for 
which  purpose  an  injunction  may  issue  if  necessary. 

Deeds  of  trust. — Sec.  3318.  Deeds  of  trust  of  real  or  personal  property  may  be 
executed  as  securities  for  the  performance  of  contracts,  and  shall  be  considered  as, 
and  foreclosed  like  mortgages, 

Notice. — The  notice  required  by  the  foregoing  provisions, 
may  be  in  the  following  form: 

SHERIFF'S  NOTICE  OF  SALE  OF  MORTGAGED  PROPERTY. 
No.  98. 

To  C  D,  (and  if  there  are  subsequent  purchasers  or  parties 
having  liens  on  the  property  insert  their  names  here.) 

You  are  hereby  notified,  that  by  virtue  of  a  chattel  mortgage 
of  the  following  described  personal  property,  to  wit:  [here  insert 
a  full  description  of  the  mortgaged  property,]  executed  by  you 
the  said  C  D,  to  E  F,  to  secure  to  said  E  F,  the  sum  of  $. . . . , 
(or  to  secure  the  payment  of  a  promisory  note  executed  by  said 
E  F,  to  said  C  D,  for  the  sum  of  $....,  and  interest  at  ....  per 
cent,)  and  the  costs  and  expenses  of  a  foreclosure;  which  mort- 
gage, (and  note  in  case  a  note  was  given,)  bears  date  ....  18. ., 
and  which  mortgage  was  recorded  in  the  office  of  the  recorder  of 

....  county,  Iowa,  on  the day  of    .  .  . .,  18. .,  in  book  .  .  of 

mortgages,  page  . . ,  will  be  foreclosed  by  a  sale  of  said  mort- 
gaged property,  or  so  much  thereof  as  will  be  necessary  to  satisfy 
said  mortgage,  at  public  auction  at  .  , . . ,  in  said  county,  on  the 
....  day  of  ....  18 ..,  at  ... .  o'clock  . .  M.,  of  said  day. 

Said  sale  will  be  conducted  by  the  undersigned,  sheriff  of  said 
county,  by  \artue  of  said  mortgage. 

Dated  this  ....  day  of 18 . . 

A  . . .  B . . . . ,  sheriff  of  ... .  county.,  Iowa. 

Service  of  notice. — The  notice  of  sale  should  be  served  on 
the  mortgagor,  and  all  purchasers  from  him  subsequent  to  the 
execution  of  the  mortgage,  and  on  all  persons  having  recorded 
liens  upon  the  same  property  which  are  junior  to  the  mortgage 
lien,  and  the  service  and  return  should  be  made  in  the  same  man- 
ner as  in  case  of  original  notices  by  which  civil  actions  are  com- 
menced; and  in  addition  thereto,  notice  should  be  posted  up  in  at 
least  three  public  places  in  the  county,  one  of  which  should  be  at 


156  FORECLOSUEE   OF   CHATTEL   MOETGAGES. 

the  place  where  the  last  District  Court  was  held;  and  where  per- 
sonal property  to  the  amount  of  two  hundred  dollars  or  upward 
is  to  be  sold,  there  should  be  two  publications  of  the  notice  in  a 
newspaper  in  the  county,  if  there  be  one. 

Evidence  perpetuated  by  aflidavits. — The  notice  with 

the  service,  including  the  posting  thereof  and  publication,  may 
be  perpetuated  by  affidavits. 

Evidence. — The  bill  of  sale  and  affidavits  attached  are  receiv- 
able in  evidence  to  prove  the  facts  they  state. 

FORM  OF  BILL  OF  SALE. 
No.  99. 

Knoio  all  men  by  these  Presents  : 

That,  whereas,  on  the  ....  day  of  ....,18..,  C  D, 
executed  and  delivered  to  E  F,  a  certain  chattel  mort- 
gage on  the  following  described  personal  property,  to- wit  : 
[Here  insert  a  description  of  the  property],  to  secure  the  pay- 
ment of  $ .... ,  and  interest  at  ....  per  cent,  and  the  expenses  of 
a  foreclosure  of  the  same,  (or  the  payment  of  a  promissory  note 
of  the  said  C  D,  for  $....,  and  interest  at  ....  per  cent. 
of  even  date  of  said  mortgage,)  which  mortgage  was  duly  filed 
for  record  in  the  office  of  the  recorder  of  —  .  county.  State  of 
Iowa,  where  said  property  was  situated  on  the  ....  day  of  . . . . , 
18 .  . ,  and  recorded  in  the  office  of  said  recorder,  in  book  ....  of 
mortgages,  page  ...  ;  and,  whereas,  on  the  ....  day  of  . . . .,  18. ., 
said  sura  secured,  (or  some  portion  thereof,  stating  it,)  remaining 
due  and  unpaid,  the  notice  of  the  sale  of  said  property  hereto 
attached  was  duly  served  on  the  said  C  D,  (and  if  on  others,  here 
name  them, )  and  by  posting  a  copy  of  the  same  in  three  public  places 
in  said  county,  one  of  which  was  at  the  place  where  the  last  Dis- 
trict Court  was  held,  at  least  three  weeks  previous  to  the  time  of 
said  sale,  (and  in  case  the  property  is  of  the  value  of  two  hun- 
dred dollars,  add  :  by  two  publications  thereof  in  a  newspaper 
published  in  said  county,  previous  to  said  sale)  ;  and,  whereas, 
said  sum  so  secured  (or  some  part  of  it,)  remained  due  and 
unpaid  at  the  time  fixed  for  the  sale  of  said  property  in  said 
notice,  1  then  and  there  sold  said  property  at  public  auction  to 
. . .  . ,  he  being  the  highest  bidder  therefor,  for  the  sum  of  $. .  . . 

Now,  therefore,  I,  A  B,  sheriff  of  said  county,  in  consideration 
of  the  premises,  and  of  said  sum  of  $....,  in  hand  paid  by  the 
said  . . . . ,  do  hereby  sell  and  convey  unto  the  said  , . . . ,  all  the 
right,  title  and  interest  of  the  said  C  D,  (and  also  all  other  ])arties 
having  claims  to,  or  junior  liens  on  said  property,  and  on  whom 
notice  was  served,)  in  and  to  said  property,  on  which  said  mort- 
gage operated. 

Witness  my  hand,  this  ....  day  of  . . . . ,  18 . . 

A . . . .    B ,  sheriff  of .  county,  Iowa. 


sheriff's  duty.  157 

How  to  apply  the  Proceeds-— After  satisfaction  of  the 

mortgage,  the  balance,  if  any,  should  be  paid  to  the  mortgagor, 
unless  the  sheriff  should  have  notice  of  the  intervening  rights  of 
other  parties. 

It  is  easy  to  conceive  of  cases  where  other  parties  would  be 
entitled  to  the  residue.  In  such  cases  the  sheriff  would  be 
acting  as  agent  for  both  parties  or  all  parties  interested;  and 
when  he  has  acted  in  good  faith  and  Avith  ordinary  prudence,  he 
will  be  protected,  otherwise  he  might  be  liable  for  damages. 

Where  the  mortgage  fixes  the  time  and  place  of  notice  of  sale, 
it  should  be  observed  in  making  the  sale,  by  the  sheriff. 


158  INJUNCTION  CASBS. 


CHAPTER  XYI. 


INJUNCTION  CASES. 

I.     THE  SHERIFF'S  DUTIES. 

The  duties  of  the  sheriff  in  proceedings  by  injunction  are  gen- 
erally confined  to  the  service  of  the  original  notice  and  the  writ, 
and  sometimes  the  service  of  attachments  for  contempts  in  disre- 
garding the  mandates  of  the  writ. 

The  service  of  the  writ. — The  service  of  the  writ  of 
injunction  is  made  by  reading  the  original  writ  to  the  defendant 
and  giving  him  a  copy  thereof,  and  the  return  should  show  these 
facts,  and  the  time  and  place  of  service.  Miller's  Pleading  and 
Prac,  666. 

Sheriff's  disobedience  of  the  writ. — For  a  disobedience 

of  the  commands  of  such  process  the  sheriff  may  be  punished  for 
a  contempt  of  court. 

RETURN  OF  SERVICE. 
No.  lOO. 

State  of  Iowa,      ) 
County,     ) 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return, 
that  I  received  the  within  writ  for  service  on  the  ....  day  of  . . . . , 
18. .,  and  that  I  served  the  same  personally  on  C  D,  the  defend- 
ant therein  named,  on  the  ....  day  of  . .  . . ,  18 . . ,  at  . . . . ,  in  said 
county,  by  reading  the  same  to  him,  and  by  then  and  there  deliv- 
ering to  him  personally,  a  copy  of  said  writ. 
fees: 

Mileage    $ 

Service        .... 

Copy 

A . . . .  B . . . . ,  sheriff  of  said  county. 


SUBPCENAS HOW   SERVED,   EETUEN,   ETC.  159 


CHAPTEE  XYII. 


SUBPOENAS. 

T.    HOW  SERVED— RETURN. 

How  served . — The  most  common  process  the  sheriff  is  called 
upon  to  serve  is  the  subpoena.  Service  is  made  by  reading  the 
same  to  the  witness,  personally,  and  by  leaving  a  copy  with  him, 
if  demanded,  and  by  tendering  to  him  his  fees  for  one  day's 
attendance,  and  traveling  fees  if  required;  or,  in  case  the  witness 
cannot  be  found,  it  may  be  served  by  leaving  a  copy  thereof  at 
the  usual  place  of  residence  of  the  witness,  with  the  fees  and 
traveling  expenses  above  mentioned;  but  in  this  last  case  the 
witness  is  not  liable  for  a  contempt,  until  it  is  shown  that  said 
copy  came  into  the  hands  of  the  witness  together  with  said  fees. 
Code,  Sees.  3674,  3676. 

II.     FURTHER  PROVISIONS  OF  THE  CODE. 

When  witness  conceals  himself. — Sec.  3677.  If  a  witness  conceal  himself,  or 
in  any  manner  attempt  to  avoid  being  personally  served  with  a  subpcena,  any  sheriff 
or  constable  having  the  subpoena  may  use  all  necessary  and  proper  means  to  serve 
the  same,  and  for  that  purpose  may  break  into  any  building  or  other  place  where 
the  witness  is  to  be  found,  having  first  made  known  his  business  and  demanded 
admission. 

FORM  OF  RETURN. 
No.  lOl. 

State  of  Iowa,      | 

County,      j 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return, 
that  I  received  this  subpoena  for  service  on  the  ....  day  of  . . . . , 
18..,  and  that  I  served  the  same  on  CD,  the  witness  therein 
named,  at  .  .  . . ,  on  the  ....  day  of  . .  . . ,  18 . . ,  by  reading  the 
same  to  him,  and  by  then  and  there  leaving  a  copy  thereof  with 


160  RETURN   OF    SUBPCENA. 

him  personally,  he  having  demanded  the  same;  and  that  no  fees 
were  required  by  said  witness;  (or,  if  witness  fees  were  required, 
so  state,  and  whether  paid  or  not,  and  if  paid,  how  much.) 

Dated ,  18 . . . 

A....   B....,  Sheriff. 


RETURN   WHERE  COPY  IS  LEFT. 
No.  103. 

State  of  Iowa,      ) 
County.  \ 

I,  A  B,  sheriff,  etc.,  hereby  certify  and  return,  etc.,  and  that 
after  diligent  search  said  witness  was  not  found,  and  that  on  the 
....  day  of  . . . . ,  18 . . ,  I  left  a  copy  of  said  subpoena  at  the 
dwelling  house  of  the  said  C  D,  in  ....  in  said  county,  that  being 
the  usual  place  of  residence  of  the  said  C  D,  with  E  I),  wife  of 
the  said  C  D,  and  that  I  also  then  and  there,  left  with  the  said 
E  D,  the  sum  of  $....,  as  the  fees  of  said  witness. 

Dated day  of ,  18 . . . 

A....  B....,  Sheriff. 


CERTIORARI — RETURN   OF   WRIT.  161 


CHAPTER  XTIII. 


OF  CERTIORARI. 

SERVICE  OF  WRIT. 

The  writ  of  certiorari  must  be  served  the  same  as  an  original 
notice,  except  that  the  original  writ  should  be  left  with  the  defend- 
ant and  a  return  of  service  made  upon  a  copy  thereof.  Code, 
Sec.  3220. 

The  forms  given,  for  returns  on  notices,  may  be  changed  to  suit 
the  required  returns  in  cases  of  certiorari. 


11 


1G2  WRIT    OF    HABEAS   CORPUS. 


CHAPTEE  XIX. 


WRIT  OF  HABEAS  CORPUS. 

HOW  AND  BY  WHOM  SERVED. 

AVho  may  serve  it. — This  writ  may  be  served  by  the  sheriiF, 
or  by  any  person  appointed  for  that  pixrpose,  in  writing,  by  the 
court  or  judge  by  whom  it  is  issued  or  allowed.     Code,  Sec.  3460. 

Mode  of  service. — The  proper  mode  of  service  is  to  leave 
the  original  with  the  defendant  and  preserve  a  copy  thereof  on 
which  to  make  a  return  of  service.     Code,  Sec.  3461. 

If  the  defendant  cannot  be  found,  or  if  he  has  not  the  plaintiff 
in  his  custody,  the  service  may  be  made  on  any  person  having  the 
plaintiff  in  his  custody,  in  the  same  manner  and  with  the  same 
effect  as  though  he  had  been  made  defendant  therein.  Code, 
Sec.  3462. 

The  Code  further  provides: 

Power  of  officer  when  defendant  is  concealed.— Section  3463.  If  the  defendant 
conceal  himself,  or  refuse  admittance  to  the  person  attempting  to  serve  the  writ,  or  if 
he  attempt  wrongfully  to  carry  the  plaintiff  out  of  the  county  or  the  state,  after  the 
service  of  the  writ  as  aforesaid,  the  sheriff,  or  the  person  who  is  attempting  to  serve, 
or  who  has  served  the  writ  as  above  contemplated,  is  authorized  to  arrest  the 
defendant,  and  bring  him,  together  with  the  plaintiff,  forthwith  before  the  officer  or 
court  before  whom  the  writ  is  made  returnable. 

Arrest. — Sec.  3464.  In  order  to  make  such  arrest,  the  sheriff  or  other  person 
having  the  writ,  possesses  the  same  power  as  is  given  to  a  sheriff  for  the  arrest  of  a 
person  charged  with  a  felony. 

Sec.  3465.  If  the  plaintiff  can  be  found,  and  if  no  one  appears  to  have  the  charge 
or  custody  of  him,  the  person  having  the  writ  may  take  him  into  custody,  and  make 
return  accordingly.  And  to  get  possession  of  plaintiff's  person  in  such  cases,  he 
possesses  the  same  power  as  is  given  by  the  last  section  for  the  arrest  of  the 
defendant. 

Want  of  form. — Sec.  34GG.    The  writ  of  habeas  corpus  must  not  be  disobeyed 


now   AND    BY    WHOM    SERVED.  163 

for  any  defects  of  form  or  misdescription  of  the  plaintiff  or  defendant,  provided 
enough  is  stated  to  show  the  meaning  and  intent  of  the  writ. 

Penalty  for  eluding  writ. — Sec.  3467.  If  the  defendant  attempt  to  elude  the 
service  of  the  writ  of  habeas  corpus,  or  to  avoid  the  effect  thereof  by  transferring  the 
plaintiff  to  another,  or  by  concealing  him,  he  shall,  on  conviction,  be  imprisoned  in 
the  penitentiary  or  county  jail  not  more  than  one  year,  and  fined  not  exceeding  one 
thousand  dollars.  And  any  person  knowingly  aiding  or  abetting  in  any  such  act 
shall  be  subject  to  the  like  punishment. 

Eefuse  to  give  copy  of  process. — Sec.  3468.  An  officer  refusing  to  deliver  a 
copy  of  any  legal  process  by  which  he  detains  the  plaintiff  in  custody,  to  any  person 
who  demands  such  copy,  and  tenders  the  fees  therefor,  shall  forfeit  two  hundred  dol- 
lars to  the  person  so  detained. 

When  to  issue.— Sec.  3469.  The  court  or  judge  to  whom  the  application  for  the 
writ  is  made,  if  satisfied  that  the  plaintiff  would  suffer  any  irreparable  injury  before 
he  could  be  relieved  by  the  proceedings  as  above  authorized,  may  issue  a  precept  to 
the  sheriff,  or  any  other  person  selected  instead,  commanding  him  to  bring  the  plain- 
tiff forthwith  before  such  court  or  judge. 

Evidence. — Sec.  3470.  When  the  evidence  aforesaid  is  farther  sufficient  to  justify 
the  arrest  of  the  defendant  for  a  criminal  offense  committed  in  connection  with  the 
illegal  detention  of  the  plaintiff,  the  precept  must  also  contain  an  order  for  the  arrest 
of  the  defendant. 

How  served. — Sec.  3471.  The  officer  or  person  to  whom  the  precept  is  directed, 
must  execute  the  same  by  bringing  the  defendant,  and  also  the  plaintiff  if  required, 
before  the  court  or  judge  issuing  it,  and  thereupon  the  defendant  must  make 
return  to  the  writ  of  habeas  corpus  in  the  same  manner  as  if  the  ordinary  course  had 
been  pursued. 

Examination. — Sec.  3472.  The  defendant  may  also  be  e.^camined  and  committed 
or  bailed  or  discharged,  according  to  the  nature  of  the  case. 


EETUEN  TO  HABEAS  CORPUS. 
No.  103. 

State  of  Iowa,       ) 
County.  )  ' ' ' 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that  I 
received  the  original  writ  of  habeas  corpus  of  which  the  within 
is  a  copy,  for  service  on  the  ....  day  of  .  .  . . ,  18 . . ,  and  that  on 
the  same  day,  (or  some  other  day,  naming  it,)  1  served  the  same 
on  C  D,  the  defendant  therein  named  at  . . . . ,  in  said  county,  by 
leaving  with  said  C  D,  said  original  writ. 

Dated  this day  of ^  A.  D.  18 . . . 

A....  B....,Sheriff'. 

HETUEN  WHERE  SEEVICE  IS  MADE  ON  ANOTHEE  PAETY. 
3Sro.   104. 

State  of  Iowa,      } 
County,  f 

I,  A  B,  sheriff  of  said  county,  herel)y  certify  and  return,  that 
I  received  the  original  writ  of  habeas  corpus,  of  which  the  within 


1G4  AVKIT    OF    HABEAS    CORPUS. 

is  a  copy,  for  service,  on  the day  of   .  .  .  . ,  18 .  . ,  and  that  on 

the  ....  day  of ,  18 . . ,  at ,  in  said  county,  I  served  the 

same  on  E  F,  the  person  who  had  the  plaintiff  in  his  custody,  by 
leaving  with  him  said  original  writ. 

Dated, ,  18 . . 

A....  B....,  Sheriff. 


WEIT   OF    MANDAMUS.  165 


CHAPTEE  XX 


WRIT  OF   MANDAMUS. 

SERVICE  AND  RETURN. 

The  service  and  return  of  a  writ  of  mandamus  may  be  the 
same  as  in  case  of  habeas  corpus,  and  the  forms  given  in  that 
case  will  be  sufficient  guide  to  the  officer  in  the  case  of 
mandamus. 


166  COMMITMENT   FOR   INSANITY — SHERIFF'S   DUTY. 


CHAPTER  XXI. 


C0MM1T3IENT  FOR  INSANITY. 


SHERIFF'S   DUTY. 

On  the  finding  of  a  jury  that  a  person  charged  with  a  crime  is 
insane,  the  Code  provides  as  follows: 

If  insane.— Section  4624.  If  the  jury  find  the  defendant  insane,  the  proceedings 
on  the  indictment  shall  be  suspended  until  he  becomes  sane,  and  the  court,  if  it  deem 
his  discharge  dangerous  to  the  public  peace  or  safety,  may  order  that  he  be  in  the 
meantime  committed  by  the  sheriff  to  the  Iowa  Insane  Hospital,  and  that  upon  his 
becoming  sane,  he  be  delivered  by  the  superintendent  of  the  hospital  to  the  sheriff. 

Bail :  released. — Sec.  4625.  The  commitment  of  the  defendant,  as  provided  in 
the  last  section,  exonerates  his  bail,  or  entitles  a  person  authorized  to  receive  the 
property  of  the  defendant,  to  a  return  of  the  money  he  may  have  depxjsited  instead 
of  bail. 

Detained  in  hospital. — Sec.  4626.  If  the  defendant  be  received  into  the  hospital 
he  must  be  detained  there  until  he  becomes  sane.  When  he  becomes  sane,  the 
superintendent  of  the  hospital  must  give  notice  of  that  fact  to  the  sheriff  and  the  dis- 
trict attorney  of  the  proper  district.  The  sheriff  must  thereupon,  without  delay, 
bring  the  defendant  from  the  hospital,  and  place  him  in  the  proper  custody  until  he 
be  brought  to  trial  or  judgment,  as  the  case  may  be,  or  be  legally  discharged. 

Expenses.— Sec.  4627.  The  expense  of  sending  the  defendant  to  the  hospital, 
bringing  him  back,  and  any  other  expense  incurred,  are  to  be  paid  in  the  first 
instance  by  the  county  from  which  he  was  sent,  but  the  county  may  recover  from  the 
estate  of  the  defendant,  if  he  have  any,  or  from  a  relative,  or  another  county,  town, 
township,  or  city,  bound  to  provide  for  or  maintain  him  elsewhere. 

Sec.  4628.  Sheriffs,  for  delivering  persons  found  to  be  insane,  under  the  provis- 
ions of  this  chapter,  are  entitled  to  the  same  fees  therefor  as  are  allowed  for  convey- 
ing convicts  to  the  penitentiary. 


SERVICE    OF   OTHER   PROCESS.  167 


CHAPTEE  XXII. 


OF  THE  SERVICE  OF  OTHER  PROCESS. 

Other  notices,  orders  and  process  than  those  we  have  mentioned 
are  sometimes  required  to  be  served  by  the  sheriff,  such  as 
notices  of  appeal,  of  motions,  to  tenants,  etc.  But  the  mode  of 
service  is  usually  pointed  out  by  the  statute  relating  to  those 
matters. 

The  provisions  of  the  Code  relating  to  service  of  notices  of 
motions,  are  as  follows: 

SERVICE. 

Service;  how  made. — Section  2916.  Notices  and  copies  of  motions  mentioned 
in  this  chapter,  my  be  served  by  any  one  who  would  be  authorized  to  serve  an 
original  notice. 

Sec.  2917.  The  service  shall  be  on  each  of  the  parties  adverse  to  the  motion,  if 
more  than  one,  or  on  an  attorney  of  record  of  such  party. 

Sec.  2918.  The  service  may  be  personal  on  such  party  or  attorney,  or  may  be 
made  in  the  same  manner  as  is  provided  for  the  service  of  the  original  notice  in 
civil  actions ;  or  it  may  be  served  on  the  attorney  by  being  left  at  his  office  with  any 
person  having  the  charge  thereof. 

Betam. — Sec  2919.  Any  officer  authorized  to  serve  any  notice,  shall  serve  at 
once  the  same  and  make  prompt  return  to  the  party  who  delivered  the  same  to  him, 
and  a  failure  to  do  so  shall  be  punished  as  a  disobedience  of  the  process  of  the 
court. 

Sec  2920.  The  return  of  proof  of  service  must  state  the  manner  in  which  it  was 
made. 

When  court  may  direct  manner  of  service. — Sec  2921.  When  the  party  has 
no  known  place  of  abode  in  this  state,  and  no  attorney  in  the  county  where  the  action  is 
pending,  or  where  the  parties,  plaintiffs  or  defendants,  are  numerous,  the  court  or 
judge  may  direct  the  mode  of  serving  notices,  and  on  whom  they  shall  be  served. 

SERVICE   OP    NOTICES   IN    OTHER  CASES — EXECUTIONS. 

Notices  :  how  served. — Sec  ."5214.  The  service  of  all  notices  of  appeal,  or  in 
any  way  growing  out  of  such  rights  or  connected  therewith,  and  all  notices  in  the 


168  SEEVICE   OF   OTHER   PKOCESS. 

supreme  court,  shall  be  in  the  way  provided  for  the  services  of  like  notices  in  the 
circuit  or  district  court,  and  they  may  be  served  by  the  same  person  and  returned  in 
the  same  manner,  and  the  original  notice  of  the  appeal  must  be  returned  immedi- 
ately after  service  to  the  office  of  the  clerk  of  the  district  or  circuit  court,  where  the 
suit  is  pending. 

Executions  :  Form  of. — Sec.  3215.  Executions  issued  from  the  supreme  court 
shall  be  the  same  as  those  from  the  district  or  circuit  court  and  attended  with  the 
same  consequences,  and  shall  be  returnable  in  the  same  time. 


EELATING   TO   AEEESTS.  169 


OHAPTEE  XXIII. 


SHERIFF'S  DUTY  IN  RELATION  TO  CRIMES. 

I.    RELATING  TO  ARRESTS, 
May  summon  the  power  of  the  county . — The  sheriff  and 

his  deputies,  as  we  have  already  observed,  are  conservators  of 
the  peace,  and  in  order  to  preserve  the  same  or  prevent  crime,  or 
arrest  any  person  guilty  thereof,  or  lawfully  charged  therewith, 
or  to  execute  any  lawful  process,  may  call  any  person  to  their 
aid,  and  when  necessary  in  the  discharge  of  their  duty  in  this 
respect,  may  summon  the  posse  comitatus,  or  power  of  the  county. 
Code,  Sec.  340. 

Provision  of  the  Code  relating  to  arrests.— The  Code 

particularly  defines  what  an  arrest  is,  and  how  and  by  whom  it 
may  be  made,  and  what  should  be  done  on  arrests,  as  follows: 

OF   ARREST   ON   PRELIMINARY  EXAMINATION. 

Complaint. — Section  4185.  When  complaint  is  made  before  a  magistrate  of  the 
commission  of  some  designated  public  offense,  triable  on  indictment  in  the  county 
in  which  such  magistrate  has  local  jurisdiction,  and  charging  some  person  with  the 
commission  thereof,  he  may  issue  a  warrant  for  the  arrest  of  such  person.  The  com- 
plaint may  be  in  form  substantially  the  same  as  provided  in  section  four  thousand 
six  hundred  and  sixty-three  of  chapter  fifty-two  of  this  title. 

Warrant :  form  of. — Sec.  4186.  The  warrant  of  arrest  on  a  preliminary  infor- 
mation, must  be  substantially  in  the  following  form  : 

County  of    .  .  . 

The  State  of  Iowa, 

To  any  peace  officer  in  the  State: 

Preliminary  information  upon  oath  having  been  this  day  laid  before  me  that  the 
crime  of  (designating  it,)  has  been  committed,  and  accusing  A  B  thereof: 

You  are,  therefore,  commanded  forthwith  to  arrest  the  said  A  13,  and  bring  him 


170  sheriff's  duty  in  relation  to  crimes. 

before  me  at  (naming  the  place,)  or  in  case  of  my  absence  or  inability  to  act,  before 
the  nearest  or  most  accessible  magistrate  in  this  county. 
Dated  at    .    ,  ,  this    .    .   day  of    .    .  ,  A.  D.  18  . 

C  .    .    D  .    .  ,  jfustice  of  the  Peace, 
(or  as  the  case  may  be.) 
Subpoena  as  witnesses  E  .    .   F  .    .  and  G  .    .   H  .    . 

Sec.  4187.  The  warrant  must  specify  the  name  of  the  defendant,  and  if  it  be 
unknown  to  the  magistrate,  may  designate  him  by  any  name.  It  must  also  state,  by 
name  or  general  description,  an  offense  which  authorizes  the  magistrate  to  issue  the 
warrant,  the  time  of  issuing  it,  and  the  county,  city,  town,  township,  or  village 
where  it  was  issued,  and  must  be  signed  by  the  magistrate  with  his  name  of  office. 

Directed. — Sec.  4188,     It  must  be  directed  to  "  any  peace  officer  in  the  state." 

If  offense  is  a  misdemeanor. — Sec.  4189.  If  the  offense  stated  in  the  warrant  be 
a  misdemeanor,  the  magistrate  issuing  it  must  make  an  indorsement  on  the  warrant 
as  follows;  "Let  the  defendant,  when  arrested,  be  admitted  to  bail  in  the  sum  of 
.  .  dollars,  if  he  desires  to  give  bail,"  and  fix  in  the  indorsement  the  amount  in 
which  bail  may  be  taken. 

How  served. — Sec.  4190.  The  warrant  of  arrest  may  be  delivered  to  any  peace 
officer  for  execution,  and  executed  in  any  county  in  the  state. 

If  offense  be  felony. — Sec.  4191.  If  the  offense  stated  in  the  warrant  be  a  felony, 
the  officer  making  the  arrest  must  take  the  defendant  before  the  magistrate  who 
issued  it  at  the  place  mentioned  in  the  command  thereof,  or,  in  the  event  of  his 
absence  or  inability  to  act,  before  the  nearest  or  most  accessible  magistrate  in  the 
county  in  which  it  was  issued. 

Bail  incase  of  misdemeanor. — Sec.  4192.  If  the  offense  stated  in  the  warrant 
be  a  misdemeanor,  and  the  defendant  be  arrested  in  another  county,  the  officer  must, 
upon  being  required  by  the  defendant,  take  him  before  a  magistrate  or  the  clerk  of 
tlie  district  court  of  the  same  county  in  which  he  was  arrested,  for  the  purpose  of 
giving  bail,  and  the  magistrate  or  clerk  before  whom  he  is  taken  in  such  county, 
must  take  bail  from  him  accordingly  for  his  appearance  at  the  district  court  of  the 
county  in  which  the  warrant  was  issued,  on  the  first  day  of  the  next  term  thereof. 

Order  for  discharge  of  defendant. — Sec.  4193.  On  taking  bail  in  the  case  pro- 
vided for  in  the  preceding  section,  the  magistrate  or  clerk  taking  such  bail  must  make 
on  the  warrant  an  order  signed  by  him  with  his  name  of  office,  for  the  discharge  of  the 
defendant,  substantially  as  follows : 

County  of  (here  name  the  county:) 
The  State  of  Iowa. 

To  (here  state  the  name  of  the  officer  who  has  the  defendant  in  custody,  with  the 
addition  of  his  name  of  office,  thus  A,  B.,  sheriff  of  .  .  county,  according  to  the 
truth:) 

The  defendant  named  in  the  warrant  of  arrest  in  your  custody,  under  the  authority 
thereof,  for  the  offense  therein  designated,  having  given  sufficient  bail  to  answer  the 
same,  by  the  undertaking  herewith  delivered  to  you,  you  are  commanded  forthwith 
to  discharge  him  from  custody,  and  without  unnecessary  delay  deliver  this  order, 
together  with  the  said  undertaking  of  bail,  to  the  clerk  of  the  district  court  of  .  . 
county,  on  or  before  the  first  day  of  the  next  term  thereof. 

Dated  at  .   .  ,  this  .   .  day  of  .    .  ,  A.  D.,  (or  as  the  case  may  be.) 

.    .     .    .  ,  yustice  of  the  Peace, 
(Or  as  the  case  may  be.) 


RELATING   TO   AEEESTS.  171 

And  must  deliver  the  warrant  with  the  order  thereon,  together  with  the  under- 
taking of  bail,  to  the  officer  having  the  defendant  in  custody,  who  shall  forthwith 
discharge  the  defendant  from  arrest  and  without  unnecessary  delay,  and  on  or  before 
the  first  day  of  the  next  term  of  the  court  at  which  the  defendant  is  required  to 
appear,  deliver  or  transmit  by  mail  or  otherwise  the  warrant,  with  the  order  thereon, 
together  with  the  undertaking  of  bail,  to  the  clerk  of  the  court  at  which  the  defend- 
ant is  required  to  appear,  who  shall  forthwith  file  the  same  in  his  office ;  and  the 
magistrate  who  issued  the  warrant  shall  return  to  the  clerk  the  affidavits  of  the 
informant,  and  his  witnesses  upon  which  the  warrant  was  issued,  on  or  before  the 
first  day  of  the  next  term  of  the  court,  and  the  clerk  shall,  when  the  affidavits  are 
returned  by  the  magistrate,  file  the  same  in  his  office,  with  the  warrant  and  under- 
taking of  bail. 

If  bail  be  not  given. — Sec.  4194.  If  bail  be  not  forthwith  given  by  the  defend- 
ant as  provided  in  the  two  preceding  sections,  the  magistrate  or  clerk  must  re-deliver 
to  the  officer  the  warrant,  and  the  officer  must  take  the  defendant  before  the  magis- 
trate who  issued  it,  at  the  place  mentioned  in  the  command  thereof,  or,  if  he  be 
absent  or  unable  to  act,  before  the  nearest  or  most  accessible  magistrate  in  the 
county  in  which  the  warrant  was  issued. 

Proceedings  after  arrest. — Sec.  4195.  In  all  cases  when  the  defendant  is 
arrested,  he  must  be  taken  before  the  magistrate  or  clerk  without  unnecessary  delay, 
and  the  officer  must  at  the  same  time  deliver  to  the  magistrate  or  clerk  the  warrant 
with  his  return  thereon,  indorsed  and  subscribed  by  him  in  his  name  of  office. 

Sec.  4196.  If  the  defendant  be  taken  before  a  magistrate  in  the  county  in  which 
the  warrant  was  issued,  other  than  the  magistrate  who  issued  it  as  hereinbefore  pro- 
vided, the  affidavits  on  which  the  warrant  was  issued  must  be  sent  to  such  magistrate, 
or  if  they  cannot  be  procured,  the  informant  and  his  witnesses  must  be  subpoenaed  to 
make  new  affidavits. 

BY   WHOM    AND    HOW   MADE. 

What  is. — Sec.  4197.  Arrest  is  the  taking  of  a  person  in  custody  in  a  case,  and 
in  the  manner  authorized  by  law. 

By  whom. — Sec.  4198.  An  arrest  may  be  made  by  a  peace  officer,  or  by  a  private 
person. 

With  warrant. — Sec.  4199.  A  peace  officer  may  make  an  arrest  in  obedience  to 
a  warrant  delivered  to  him. 

Without  by  peace  officer. — Sec.  4200.  A  peace  officer  without  a  warrant  may 
make  an  arrest : 

1.  For  a  public  offense  committed  or  attempted  in  his  presence ; 

2.  Where  a  public  offense  has  in  fact  been  committed,  and  he  has  reasonable 
ground  for  believing  that  the  person  to  be  arrested  has  committed  it. 

By  private  person. — Sec.  4201.    A  private  person  may  make  an  arrest : 

1.  For  a  public  offense  committed  or  attempted  in  his  presence  ; 

2.  When  a  felony  has  been  committed,  and  he  has  reasonable  ground  for  believ- 
ing that  the  person  to  be  arrested  has  committed  it. 

Magistrate  may  orally  order  arrest. — Sec.  4202.  A  magistrate  may  orally  order 
a  peace  officer,  or  a  private  person,  to  arrest  any  one  committing,  orattcmpiing  to 
commit  a  public  offense  in  the  presence  of  Such  magistrate,  which  order  shall  authorize 
the  arrest. 

When  made. — Sec.  4203.  An  arrest  may  be  made  on  any  day,  or  at  any  time  of 
the  day  or  night. 


172  sheriff's  i>uty  in  eelation  to  chimes. 

How  to  be  made. — Sec.  4204.  The  person  making  the  arrest  must  inform  the 
person  to  be  arrested  of  the  intention  to  arrest  him,  of  the  cause  of  the  arrest,  of  his 
authority  to  make  it,  and  that  he  is  a  peace  officer,  if  such  be  the  case,  and  require 
him  to  submit  to  his  custody,  except  when  the  person  to  be  arrested  is  actually 
engaged  in  the  commission  of,  or  attempt  to  commit,  the  offense,  or  flies  immediately 
after  its  commission,  and  if  acting  under  the  authority  of  a  warrant,  he  must  give 
information  thereof,  and  show  the  warrant  if  required. 

When  resisted. — Sec.  4205.  When  the  arrest  is  being  made  by  an  officer  under 
the  authority  of  a  warrant,  after  information  of  the  intention  to  make  the  arrest,  if  the 
person  to  be  arrested  either  flee  or  forcibly  resist,  the  officer  may  use  all  necessary 
means  to  affect  the  arrest. 

May  break  and  enter  premises. — Sec.  4106.  To  make  an  arrest,  if  the  offense  " 
be  a  felony,  a  private  person,  if  any  public  offense,  a  peace  officer  acting  under  the 
authority  of  a  warrant,  or  without  a  warrant,  may  break  open  a  door  or  window  of  a 
house  in  which  the  person  to  be  arrested  may  be,  or  in  which  they  have  reasonable 
grounds  for  believing  he  is,  after  having  demanded  admittance  and  explained  the 
purpose  for  which  admittance  is  desired. 

In  order  to  get  out. — Sec.  4207.  Any  person  who  has  lawfully  entered  a  house 
for  the  purpose  of  making  an  arrest  under  the  provisions  of  the  preceding  section, 
may  break  open  the  door  or  window  thereof  if  detained  therein,  when  necessary  for 
the  purpose  of  liberating  himself;  and  an  officer  may  do  the  same,  when  neces- 
sary for  the  puVpose  of  liberating  a  person  who,  acting  in  his  aid,  and  by  his  com- 
mand, lawfully  entered  for  the  purpose  of  making  an  arrest,  and  is  detained  therein. 

Refuses  to  assist  in  making  arrest.— Sec.  4208.  Any  person  making  an  arrest, 
may  orally  summon  as  many  persons  as  he  deems  necessary  to  aid  him  in  making 
the  arrest,  and  all  persons  failing  to  obey  such  summons  shall  be  guilty  of  a  misde- 
meanor. 

Arrest:  how  made. — Sec.  4209.  An  arrest  is  made  by  an  actual  restraint  of  the 
person  to  be  arrested,  or  by  his  submission  to  the  custody  of  ^the  person  making  the 
arrest. 

Force. — Sec.  4210.  No  unnecessary  force  or  violence  shall  be  used  in  making  an 
arrest. 

How  treated. — Sec.  4211.  A  person  arrested  is  not  to  be  subjected  to  anymore 
restraint  than  is  necessary  for  his  detention. 

May  take  weapons  from  persons  arrested. — Sec.  4212.  He  who  makes  an 
arrest  may  take  from  the  person  arrested  all  offensive  weapons  which  he  may  have 
about  his  person,  and  must  deliver  them  to  the  magistrate  before  whom  he  is  taken,  to 
be  disposed  of  according  to  law. 

Escape. — Sec.  4213.  If  a  person,  after  being  arrested,  either  by  a  peace  officer 
without  a  warrant,  or  by  a  private  person,  escape,  or  be  rescued,  the  person  from 
whose  custody  he  escaped  or  was  rescued,  may  immediately  pursue  and  retake  him 
in  any  part  of  the  state,  and  for  that  purpose  may,  if  necessary,  break  open  the  door 
or  window  of  a  house  in  which  he  may  be,  or  in  which  he  has  reasonable  ground  to 
believe  he  is,  after  having  stated  his  purpose  and  demanded  admittance,  and  when  the 
person  escaping  or  rescued  was  in  custody  imder  a  warrant  or  commitment,  this  may 
be  done  at  any  time  under  the  original  warrant  or  commitment. 

Arrest  by  bystander. — Sec.  4214.  A.peace  officer  may  take  before  a  magistrate 
a  person  who,  being  engaged  in  a  breach  of  the  peace,  is  arrested  by  a  bystander  and 
delivered  to  him. 

When  arrest  is  by  private  person. — Sec.  4215.     A  private  person  who  has 


EELA.TING   TO   ARRESTS.  173 

arrested  another  for  the  commission  of  an  offense,  must,  without  unnecessary  delay, 
take  him  before  a  magistrate  or  deliver  him  to  a  peace  officer. 

Sec.  4216.  A  private  person  who  makes  an  arrest  and  delivers  tire  person  arrested 
to  a  peace  officer,  must  also  accompany  the  officer  before  the  magistrate. 

By  ofBcer  with  warrant. — Sec.  4217.  An  officer  making  an  arrest  in  obedience 
to  a  warrant,  shall  proceed  with  the  person  arrested  as  commanded  by  the  warrant, 
or  as  provided  by  law. 

When  without  warrant. — Sec.  4218.  When  an  arrest  is  made  without  a  warrant, 
whether  by  a  peace  officer  or  a  private  person,  the  person  arrested  shall,  without 
unnecessary  delay,  be  taken  before  the  nearest  or  most  accessible  magistrate  in  the 
county  in  which  the  arrest  is  made;  and  the  grounds  on  which  the  arrest  was  made 
shall  be  stated  to  the  magistrate  by  affidavit,  subscribed  and  sworn  to  by  the  person 
making  the  statement  before  the  magistrate,  in  the  same  manner  as  upon  a  prelimi- 
nary information,  as  nearly  as  may  be. 

HEARING    BEFORE   MAGISTRATE. 

Magistrate  may  order  information  to  be  filed. — Sec.  4219.  If  the  magistrate 
believes  from  the  statements  in  the  affidavit  that  the  offense  charged  is  triable  in  the 
county  in  which  the  arrest  was  made,  and  that  there  is  sufficient  ground  for  a  trial  or 
preliminary  examination,  as  the  case  may  require,  and  that  it  will  not  be  inconvenient 
for  the  witnesses  on  the  part  of  the  state  that  such  trial  or  preliminary  examination 
should  be  had  before  him,  he  shall  proceed  as  if  the  person  arrested  had  been  brought 
before  him  on  arrest  under  a  warrant,  and  if  the  case  be  one  within  his  jurisdiction  to 
try  and  determine,  shall  order  an  information  to  be  filed  against  him. 

May  order  hearing  to  take  place  before  another  magistrate. — Sec.  4220.  If 
the  magistrate  believes  from  the  statements  in  the  affidavit  that  the  offense  charged  is 
triable  in  the  county  in  which  the  arrest  is  made,  and  that  there  is  sufficient  ground 
for  a  trial  or  preliminary  examination,  and  that  it  will  be  more  convenient  for  the 
witnesses  on  the  part  of  the  state  that  such  trial  or  examination  should  be  had  before 
some  other  magistrate,  he  shall,  by  a  written  order  by  him  signed  with  his  name  of 
office,  commit  the  person  arrested  to  a  peace  officer,  to  be  by  him  taken  before  such 
magistrate  in  the  same  county  who  has  jurisdiction  to  try  or  examine  the  charge  as 
the  case  may  require,  and  as  shall  be  convenient  for  the  witnesses  on  the  part  of  the 
state,  and  deliver  the  affidavit  and  the  order  of  commitment  to  the  peace  officer,  who 
shall  proceed  with  the  person  arrested  as  directed  by  the  order;  and  such  magistrate, 
when  the  person  arrested  is  brought  before  him,  shall  proceed  as  on  an  arrest  under 
a  warrant,  and,  if  the  case  be  within  his  jurisdiction  to  try  and  determine,  shall  order 
an  information  to  be  filed  against  the  person  arrested. 

When  the  offense  is  triable  in  another  county. — Sec.  4221.  If  the  magistrate 
believes  from  the  statements  in  the  affidavit  that  the  offense  charged  is  triable  in  a 
county  different  from  that  in  which  the  arrest  is  made,  and  that  there  is  sufficient 
ground  for  a  trial  or  preliminary  examination,  he  shall,  by  a  written  order  by  him 
signed  with  his  name  of  office,  commit  the  person  arrested  to  a  peace  officer,  to  be  by 
him  taken  before  a  magistrate  in  the  county  in  which  the  offense  is  triable,  who  has 
jurisdiction  to  make  either  preliminary  examination  into  the  charges,  or  try  and  deter- 
mine the  same,  as  the  case  may  require,  and,  if  the  offense  be  a  misdemeanor  only 
triable  on  indictment,  shall  fix  in  the  order  the  amount  of  bail  which  the  person 
arrested  may  give  for  his  appearance  at  the  district  court  of  the  county  in  which  the 
offense  is  indictable,  on  the  first  day  of  the  next  term  thereof,  to  answer  an  indictment. 

Bail:  commitment:  discharge.. — Sec.  4222.  If  bail  be  given  as  provided  in  the 
preceding  section,  it  may  be  either  before  the  magistrate  making  the  order,  or  the 


174  sheriff's  duty  in  eelation  to  crimes. 

magistrate  in  the  county  in  which  the  offense  is  triable  before  whom  he  is  taken 
under  the  order,  or  a  magistrate  of  any  county  through  which  he  passes  in  going  from 
the  county  in  which  the  arrest  was  made  to  that  in  which  the  offense  is  triable,  or  the 
clerk  of  the  district  court  of  either  of  said  counties;  and,  when  given,  the  magistrate 
or  clerk  taking  the  same  shall  make  on  the  order  of  commitment  an  order  for  the 
discharge  of  the  person  arrested  from  custody,  who  shall  forthwith  be  discharged 
accordingly,  and  to  transmit  by  mail  or  otherwise,  to  the  clerk  of  the  district  court 
of  the  county  at  which  the  person  arrested  is  bound  to  appear,  on  or  before  the  first 
day  of  the  next  term  thereof,  and  as  soon  as  it  can  be  conveniently  done  after  taking 
the  bail,  the  affidavits,  the  order  of  commitment  and  discharge,  together  with  the 
undertaking  of  the  bail,  who  shall  file  the  same  together  in  his  ofiice. 

Sec.  4223.  If  bail  be  not  given  as  provided  in  the  last  two  sections,  before  the 
magistrate  in  the  county  in  which  the  arrest  was  made,  or  if  the  offense  charged  is  a 
misdemeanor,  triable  on  information,  the  magistrate  must  deliver  the  affidavits  and 
the  order  of  commitment  to  a  peace  officer,  who  shall  proceed  with  the  person  arrested 
as  directed  by  the  order,  or  provided  by  law;  and  the  magistrate  in  the  county  in 
which  the  offense  is  triable,  when  the  person  arrested  is  brought  before  him,  shall 
proceed  as  on  an  arrest  under  a  warrant,  and  if  the  case  be  within  his  jurisdiction  to 
try  and  determine,  shall  order  an  information  to  be  filed  against  the  person  arrested. 

Officer  having  person  in  custody  to  take  Mm  before  magistrate. — Sec.  4224. 
In  the  cases  contemplated  in  the  last  three  sections,  the  officer  having  the  person 
arrested  in  custody,  under  the  order,  shall  take  him  before  the  proper  magistrate  in 
the  county  in  which  the  offense  is  triable,  which  is  most  convenient  for  the  witnesses 
on  the  part  of  the  state,  unless,  in  case  of  a  misdemeanor  triable  on  indictment  as 
hereinbefore  provided,  the  person  arrested  desires  to  give  bail,  in  which  case  he  shall 
take  him  before  the  most  convenient  magistrate  in  the  county  in  which  the  offense 
with  which  he  is  charged  is  triable,  or  any  county  through  which  he  passes  in  going 
from  the  county  in  which  the  arrest  was  made  to  the  county  in  which  the  offense  is 
triable,  or  before  the  clerk  of  the  district  court  of  either  of  said  counties  for  the  pur- 
pose of  giving  bail. 

Officer's  return  how  made. — Sec.  4225.  In  all  cases,  the  peace  officer,  when  he 
takes  a  person  committed  to  him  under  an  order  as  provided  in  this  chapter  before  a 
magistrate,  or  clerk  of  the  district  court,  either  for  the  purpose  of  giving  bail,  if  bail 
be  taken,  or  for  trial  or  preliminary  examination,  must  make  his  return  on  such  order, 
and  sign  such  return  with  his  name  of  office,  and  deliver  the  same  to  the  magistrate 
or  clerk. 

Same  as  common  law. — The  foregoing  provisions  in  relation 
to  arrests  are  in  harmony  with  the  general  rules  of  the  common 
law.  4  Black.,  292;  Foster's  Com.  Law,  311;  Chit.  Crim. 
Law,  15. 

What  constitutes  an  arrest. — To  constitute  an  arrest  the 
officer  should  take  the  defendant  into  his  custody.  And  this  at 
common  law  required  that  the  party  be  actually  touched  by  the 
officer,  or  confined  in  a  room,  or  submit  himself  by  words  and 
actions  to  the  custody  of  the  officer. 

When  a  party  may  be  arrested. — The  arrest  may  be 


EKLATING   TO   ARRESTS.  175 

made  in  the  day  or  night  time  and  on  Sundays  as  well  as  other 
days,  and  if  the  party  is  liable  on  a  criminal  charge,  the  court 
will  not  inquire  into  the  manner  of  arrest  though  the  party  be 
arrested  in  a  foreign  State.  3  East.,  157;  9  Barn.  &  Cress., 
446. 

Directions  of  the  Wcarrant  and  exceeding  authority.— 

The  officer  should  not  arrest  the  wrong  person  on  the  warrant  or 
he  will  be  a  trespasser,  and  if  the  warrant  is  defective,  or  the 
officer  exceeds  his  lawful  authority  under  it,  he  is  not  protected 
by  it. 

When  a  dwelling  house  may  be  broken  open.— Under 

the  provisions  of  the  statute  there  must  be  at  least  a  reasonable 
ground  for  believing  that  the  party  to  be  arrested  is  in  the  house, 
to  justify  either  a  private  person  or  an  officer  to  break  it  open, 
even  after  a  demand  of  admittance  and  explanation  of  the  cause 
for  which  the  admittance  is  desired. 

When  justified— though  the  party  is  not  found.— If 

the  party  for  the  purpose  of  making  an  arrest  in  good  faith,  and 
upon  reasonable  grounds  of  belief  of  the  presence  of  a  party 
sought  to  be  arrested  is  within,  he  would  be  justified,  in  breaking 
open  a  dwelling  house,  even  though  the  party  sought  be  not  in 
the  house,  or  be  acquitted  on  the  trial;  and  according  to  the  prin- 
ciples of  the  common  law,  if  an  officer  was  killed  by  a  party  resist- 
ing his  entrance  into  a  house  to  make  an  arrest,  and  there  was  no 
reasonable  grounds  for  believing  the  party  to  be  arrested  was 
within  the  house  at  the  time,  and  he  was  not  within,  and  the 
officer  did  not  act  in  good  faith,  it  would  be  justifiable  homicide; 
while  on  the  other  hand  the  killing  of  the  party  resisting  under 
such  circumstances  would  be  murder,  or  at  least  manslaughter  in 
the  officer.     4  Black.,  288. 

The  same  would  probably  be  true  under  the  provisions  of  the 
statute. 

An  arrest  without  warrant. — In  case  a  party  is  arrested 
by  a  private  person,  or  by  an  officer  without  a  warrant,  the  person 
arrested  should  be  taken  without  unnecessary  delay  before  the 
nearest  and  most  accessible  magistrate  and  the  grounds  of  the 
arrest  stated  in  an  affidavit  to  the  magistrate. 


176  sheriff's  duty  in  relation  to  crimes. 

IT.    THE  OFFICER'S  DUTY  ON  SEARCH  WARRANTS. 

Closely  related  to  arrests  in  many  respects  is  the  duty  of  the 
officer  on  search  warrants. 

The  following  are  the  provisions  of  the  Code  on  the  subject: 

By  whom  served. — Section  4637.  A  search  warrant  may  in  all  cases  be  served  by 
any  of  the  officers  mentioned  in  its  direction,  but  by  no  other  person  except  in  aid  of 
the  officer,  on  his  requisition,  he  being  present  and  acting  in  its  execution. 

Officer  may  break  open  doors. — Sec.  4638.  The  officer  may  break  open  any 
outer  or  inner  door  or  window  of  a  house,  or  any  part  of  the  house,  or  anything 
therein  to  execute  the  warrant,  if,  after  notice  of  his  authority  and  purpose,  he  be 
refused  admittance. 

Sec.  4639.  He  may  break  open  any  outer  or  inner  door  or  window  of  a  house 
for  the  purpose  of  liberating  a  person,  who,  having  entered  to  aid  him  in  the  execution 
of  the  warrant,  is  detained  therein,  or,  when  necessary,  for  his  own  liberation. 

Must  be  served  in  day  time. — Sec  4640.  The  magistrate  must  insert  a  direc- 
tion in  the  warrant,  that  it  be  served  in  the  day  time  unless  the  affidavit  be  positive 
that  the  property  is  on  the  person,  or  in  the  place  to  be  searched;  in  which  case,  he 
may  insert  a  direction  that  it  may  be  served  at  any  time  of  the  day  or  night. 

Return ;  in  what  time. — Sec.  4641.  A  search  warrant  must  be  executed  and 
returned  to  the  magistrate  by  whom  it  was  issued  within  ten  days  after  its  date.  After 
the  expiration  of  such  time,  the  warrant,  unless  executed,  is  void. 

Officer  receipt  for  property. — Sec.  4642.  When  the  officer  takes  any  property 
under  the  warrant,  he  must  give  a  receipt  for  the  property  taken,  specifying  it  in 
detail,  to  the  person  from  whom  it  was  taken  or  in  whose  possession  it  was  found,  or, 
in  the  absence  of  the  person,  he  must  leave  it  in  the  place  where  he  found  the 
property. 

Return  with  inventory. — Sec.  4643.  The  officer  must  forthwith  return  the  war- 
rant to  the  magistrate,  and  at  the  same  time  deliver  to  him  a  written  inventory  of  the 
property  taken,  made  publicly  or  in  the  presence  of  the  person  from  whose  posses- 
sion it  was  taken  and  of  the  applicant  for  the  warrant,  if  they  be  present,  verified  by 
the  affidavit  of  the  officer  at  the  foot  of  the  inventory  and  taken  before  the  magis- 
trate, to  the  following  effect :  "I,  the  officer  by  whom  the  annexed  warrant  was 
executed,  do  swear  that  the  above  inventory  contains  a  true  and  detailed  account  of 
all  the  property  taken  by  me  on  the  warrant." 

Officer  must  not  exceed  authority.— Sec.  4651.  A  peace  officer  who  in  execut- 
ing a  search  warrant  willfully  exceeds  his  authority,  or  exercises  it  with  unnecessary 
severity,  is  guilty  of  a  misdemeanor. 

Sec.  4652.  When  a  person  charged  with  a  felony  is  supposed  by  the  magistrate 
before  whom  he  is  brought,  to  have  upon  his  person  a  dangerous  weapon  or  anything 
which  may  be  used  as  evidence  of  the  commission  of  the  offense,  the  magistrate 
may  direct  him  to  be  searched  in  his  presence,  and  the  weapon  or  other  thing  to  be 
retained,  subject  to  his  order,  or  the  order  of  the  court  in  which  the  defeTidant  may 
be  tried. 

Sec.  4653.  When  any  officer,  in  the  execution  of  a  search  warrant,  shall  find  any 
stolen  or  embezzled  property,  or  shall  seize  any  other  things,  for  which  a  search  is 
allowed  by  this  chapter,  all  the  property  and  things  so  seized,  shall  be  safely  kept  by 
the  direction  of  the  court  or  magistrate,  so  long  as  shall  be  necessary  for  the  purpose 


DISPOSAL   or    PROPERTY   STOLEN   OR   EMBEZZLED.  177 

of  being  produced  as  evidence  on  any  trial ;  and  as  soon  as  may  be  afterwards,  all 
such  stolen  and  embezzled  property  shall  be  restored  to  the  owner  thereof,  and  all 
other  things  seized  by  virtue  of  such  warrant  shall  be  destroyed,  under  the  direction 
of  the  court  or  magistrate. 

III.     OF  THE    DISPOSAL   OF  PROPERTY   STOLEN  OR 
EMBEZZLED. 

Held  by  officer. — Section  4654.  When  property  alleged  to  have  been  stolen  or 
embezzled,  comes  into  the  custody  of  a  peace  officer,  he  must  hold  the  same  subject 
to  the  order  of  the  magistrate  authorized  by  the  ne.xt  section  to  direct  the  disposal 
thereof 

Delivered  to  owner. — Sec.  4655.  On  satisfactory  proof  of  title  by  the  owner  of 
the  property,  the  magistrate  before  whom  the  information  is  laid,  or  who  shall  exam- 
ine the  charge  against  the  person  accused  of  stealing  or  embezzling  the  same,  may 
order  it  to  be  delivered  to  the  owner,  on  his  paying  the  reasonable  and  necessary 
expenses  incurred  in  the  preservation  and  keeping  thereof,  to  be  certified  by  the  mag- 
istrate.    The  order  shall  entitle  the  owner  to  demand  and  receive  the  property. 

Sec.  4656.  If  the  property  stolen  or  embezzled  come  into  the  custody  of  a 
magistrate,  it  must  be  delivered  to  the  owner  on  satisfactory  proof  of  his  title,  and 
on  his  paying  the  necessary  expenses  incurred  in  its  preservation,  to  be  certified  as 
before  provided. 

Sec.  4657. '  If  the  property  stolen  or  embezzled  has  not  been  delivered  to  the 
owner,  the  court  before  which  a  conviction  is  had,  may,  on  proof  of  his  title,  order 
restoration. 

When  not  claimed. — Sec.  4558.  If  the  property  stolen  or  embezzled  be  not 
claimed  by  the  owner  before  the  expiration  of  six  months  from  the  conviction  of  the 
person  stealing  or  embezzling  it,  the  magistrate  or  other  officer  having  it  in  his  custody, 
must,  on  payment  of  the  necessary  expenses  incurred  for  its  preservation,  deliver  it 
to  the  auditor  of  the  county  to  be  applied  under  the  direction  of  the  board  of  super- 
visors thereof  for  the  benefit  of  the  poor  of  the  county. 

Officer  give  receipts  for  property.- -Sec.  4659.  When  the  money  or  other 
property  is  taken  from  the  defendant  arrested  upon  a  charge  of  a  public  offense,  the 
officer  taking  it  shall,  at  the  time,  give  duplicate  receipts  therefor,  specifying  partic- 
ularly the  amount  of  money  and  the  kind  of  property  taken;  one  of  which  receipts 
he  must  deliver  to  the  defendant,  and  the  other  he  must  forthwith  file  with  the  clerk 
of  the  district  court  of  the  county  where  the  depositions  and  statements  are  to  be 
sent  by  the  magistrate. 

To  follow  the  directions  of  the  warrant.— The  officer  in 

the  execution  of  a  search  warrant  should  carefully  follow  its 
directions  if  he  would  be  protected  by  it. 

He  cannot  search  other  than  the  person  or  house  described  in 
the  warrant. 

House  of  a  company.— Tf  the  warrant  describes  a  house  to 
be  searched  as  the  house  of  a  cf)inpany,  it  will  not  authorize  the 
officer  to  search  a  house  of  an  individual  member  of  the  company; 

12 


178  sheriff's  duty  in  relation  to  crimes. 

and  if  goods  be  described  in  general  terms  as  goods,  wares,  and 
merchandise,  without  any  specification  of  their  character,  quality, 
number  or  weight,  or  any  other  circumstance  tending  to  describe 
or  distinguish  them,  it  is  not  such  a  particular  description  of  the 
property  as  is  required  by  the  statute  and  the  constitution,  of 
which  the  officer  should  take  notice,  and  he  would  be  liable  as  a 
trespasser  in  the  execution  of  such  a  warrant,  and  the  property 
could  be  replevied.  Constitution  Art.  1,  Sec.  8;  Code,  Sec. 
4631-4636;  33  Iowa,  134;  34  Iowa,  128. 

Warrant  regular. — If  the  warrant  is  issued  by  a  proper 
magistrate  and  regular  on  its  face,  and  the  person  and  place  are 
particularly  described  in  it,  it  is  a  sufficient  justification  to  the 
officer  to  execute  the  process  according  to  the  command  thereof 
and  in  the  manner  pointed  out  by  the  statute. 

EETUKN  OF  SERVICE. 
No.  105. 

State  of  Iowa,      \ 
County,      J 

I,  A  B,  sheriff  of  said  county,  hereby  certify  and  return,  that  I 
received  the  within  warrant  for  service  on  the  ....  day  of  . .  . . , 
18..,.  and  that  by  virtue  thereof,  on  the  same  day  (or  at  any 
other  time, )  I  made  search  on  the  person  of  C  D,  named  therein 
to  be  searched,  ( or  in  the  house  situated,  etc.,  described  therein,) 
at  .  .  .  . ,  in  said  county,  for  the  property  described  therein,  and 
found  the  same,  and  forthwith  took  possession  thereof  (or  a  por- 
tion of  the  same,  describing  it,)  and  that  the  following  is  a  true 
inventory  of  the  same,  then  and  there  made  publicly  (or  in  the 
presence  of  the  said  C  D,  and  the  applicant  for  the  warrant,  if 
such  was  the  fact,)  by  me  to- wit: 

INVENTORY. 

One  gold  hunter  case  Elgin  watch; 
One  pistol,  six  shooter; 
One  United  States  5-20  bond  of  81,000; 
•     One  large  sole-leather  trunk. 

[If  all  the  property  should  not  be  found,  so  state  the  fact.] 
Dated  this ....  day  of . . . .  18 . . 

A  ...  B....,  Sherif. 

OATH  OF  OFFICER  TO  THE  RETURN. 
N"o.  106. 

State  of  Iowa,      ) 
....    County.  ) 
I,  A  B,  being  duly  sworn,  depose  and  say  that  I  am  sheriff  of 


DISPOSAL   or    PROPERTY   STOLES'   OR    EMBEZ2XED.  179 

said  county;  that  I  executed  the  annexed  search  warrrant  as  said 
oflGcer;  that  the  return  thereon  made  bj-  me  is  true;  and  that  the 
inventory  contained  in  said  return,  contains  a  true  and  detailed 
account  of  all  property  taken  by  me  on  said  warrant. 

A....  B.... 

Subscribed  and  sworn  to  by  said  A  B,  before  me  this  ....  day 
of  ....  18.. 

E. . . .  F. . . .,  Justice  of  the  Peace. 


180  BENCH    WARRANTS    ON    INDICTMENTS,   ETC. 


CHAPTER  XXIY. 


BENCH  WARRANTS  ON  INDICTMENTS  AND 
AFTER  FINAL  JUDGMENT. 

I.    WHERE  AND   HOW  SERVED. 

The  provisions  of  the  Code  in  reference  to  bench  warrants  on 
indictment,  are  as  follows: 

Where  served. — Section  4324.  The  bench  warrant  may  be  served  in  any  county 
in  the  state. 

Proceedings. — Sec.  4325.  If  the  defendant,  when  arrested,  be  brought  before  a 
magistrate,  or  the  clerk  of  the  district  court  of  the  same  county  in  which  it  was 
issued,  or  another  county,  for  the  purpose  of  giving  bail,  the  same  proceedings  must 
be  had,  in  all  respects,  as  if  he  had  been  arrested  on  a  warrant  of  arrest,  issued  by  a 
magistrate  on  a  preliminary  information,  as  nearly  as  may  be. 

Indictment  against  a  corporation. — Sec.  4326.  The  process  upon  an  indict- 
ment against  a  corporation  shall  b.e  a  notice ;  which  shall  be  issued  by  the  clerk  at 
anytime  after  the  filing  of  the  indictment  in  his  office,  on  the  application  of  the 
district  attorney.  The  notice  shall  be  under  the  seal  of  the  court,  and  shall  substan- 
tially, notify  the  defendant  of  the  finding  of  the  indictment,  of  the  nature  of  the 
offense  charged,  and  that  he  must  forthwith  appear  and  answer  the  same.  It  may  be 
served  by  any  peace  officer  in  any  county  in  the  state  on  any  officer  or  agent  of  the 
defendant,  by  reading  the  same  to  him  and  leaving  with  him  a  copy  thereof.  It  shall  be 
returned  to  the  clerk's  office  without  delay,  with  proper  evidence  of  its  service  ;  and, 
from  and  after  two  days  from  the  time  of  making  such  service,  the  defendant  shall  be 
considered  in  court,  and  thereafter  shall  be  considered  to  be  present  to  all  proceed- 
ings had  on  the  indictment. 

Defendant  arraigned.— Sec.  4327.  As  soon  as  practicable  after  an  indictment  is 
found,  the  defendant  must  be  arraigned  thereon,  unless  he  waive  the  same;  but  where 
a  corporation  is  defendant,  arraignment  shall  not  be  required. 

If  for  felony  or  misdemeanor. — Sec.  4328.  If  the  indictment  be  for  a  felony, 
the  defendant  must  be  personally  present,  but  if  for  a  misdemeanor  only,  his  personal 
appearance  is  unnecessary,  and  he  may  appear  upon  arraignment  by  counsel. 

If  in  custody. — Sec.  4329.  When  he  is  in  custody,  the  court  must  direct  the 
officer  in  whose  custody  he  is  to  bring  him  before  it  to  be  arraigned,  and  the  officer 
must  do  so  accordingly. 

If  on  bail. — Sec.  4330.     If  the  defendant    has  been  discharged  on  bail,  or  has 


BENCH    WARRANTS,  ETC.  181 

deposited  money  instead  thereof,  and  does  not  appear  for  arraignment  when  his  per- 
sonal appearance  is  necessary,  the  court,  in  addition  to  the  forfeiture  of  the  under- 
taking of  bail,  or  of  the  money  deposited,  may,  on  motion  of  the  district  attorney, 
make  an  order  directing  the  clerk  to  issue  a  bench  warrant  for  his  arrest,  and  fix  the 
amount  in  which  bail  will  be  taken  if  the  offense  be  bailable. 

II.     BENCH  WARRANTS  FOR  FINAL  JUDGMENT. 

The  provisions  of  the  Code  in  relation  to  the  service  of  bench 
warrants,  issued  for  the  arrest  of  a  defendant  failing  to  appear  to 
receive  the  judgment  of  the  court,  are  as  follows: 

Service. — Section  4601.  The  bench  warrant  may  be  served  in  any  county  in 
the  state. 

Sec.  4502.  Whether  the  bench  warrant  be  served  in  the  county  where  it  was 
issued,  or  in  another  county,  the  officer  must  arrest  the  defendant  and  bring  him 
before  the  court,  or  commit  him  to  the  officer  mentioned  in  the  warrant  according  to 
the  command  thereof. 

III.    ATTACHMENTS  AND  WARRANTS. 

Attachments  or  warrants  may  be  issued  by  the  order  of  the 
court  for  contempts,  as  for  failure  to  answer  interrogatories,  for 
disobedience  of  a  judgment  or  order  of  the  court  in  certain 
cases,  etc.,  etc. 

The  service  in  such  cases  should  be  according  to  the  command 
of  the  warrant,  and  the  return  made  according  to  the  facts  in  the 
case. 

IV.    EXECUTION    OF   JUDGMENT    IN    CRIMINAL 

CASES. 

The  provisions  of  the  Code  in  relation  thereto  are  as  follows: 

OP    EXECUTION. 

Copy  of  judgment  furnished  oflBcer.— Section  4512.  "When  a  judgment  of 
imprisonment,  either  in  the  penitentiary  or  county  jail  is  pronounced,  a  certified 
copy  of  the  entry  thereof  in  the  record  book,  must  be  forthwith  furnished  to  the 
officer  whose  duty  it  is  to  execute  the  same,  wlio  shall  proceed  and  execute  it 
accordingly,  and  no  other  warrant  or  authority  is  necessary  to  justify  or  require  its 
execution. 

Commitnxent  of  defendant.— Sec.  4513.  If  the  judgment  be  imprisonment,  or  a 
fine  and  imprisonment  until  it  be  satisfied,  the  defendant  must  forthwith  be  com- 
mitted to  the  custody  of  the  proper  officer,  and  by  him  detained  until  the  judgment 
be  complied  with,  or  the  defendant  discharged  by  due  course  of  law. 

By  whom  executed.— Sec.  4514.    When  the  judgment  is  imprisonment  in  the 


182  BENCU    WARRANTS   ON   INDICTMENTS,  ETC. 

county  jail  of  (he  county  in  which  the  trial  is  had,  or  a  fine  and  that  the  defendant  be 
imprisoned  in  such  county  jail  until  it  be  satisfied,  the  judgment  must  be  executed  by 
the  sheriff  of  that  county.  In  all  other  cases,  when  the  judgment  is  imprisonment, 
the  sheriff  of  the  county,  in  which  the  trial  was  had,  must  deliver  the  defendant  to  the 
proper  officer  in  execution  of  the  judgment. 

Sec.  4515.  If  the  judgment  be  imprisonment,  or  a  fine  and  imprisonment  until  it 
be  satisfied,  in  the  county  jail  of  the  county  in  which  the  trial  was  not  had,  the  sheriff 
of  the  county  in  which  the  trial  was  had,  shall  deliver  a  certified  copy  of  the  entry  of 
the  judgment,  together  with  the  body  of  the  defendant,  to  the  keeper  of  the  jail  or 
prison  in  which  the  defendant  is  to  be  imprisoned,  and  take  his  receipt  therefor  on  a 
duplicate  copy  of  such  entry,  which  he  must  forthwith  return  to  the  clerk  of  the 
court  ill  which  thejudgment  was  rendered,  with  his  return  thereon. 

Officer's  authority  in  committing. — Sec.  4516.  The  sheriff  or  his  deputy,  while 
conveying  the  defendant  to  the  proper  prison,  has  the  same  authority  to  require  the 
assistance  of  any  citizen  of  the  state  in  securing  the  defendant,  and  retaking  him  if  he 
escape,  as  if  the  sheriff  were  in  his  own  county  ;  and  every  person  who  neglects  or 
refuses  to  assist  the  sheriif  when  so  required  shall  be  punishable  as  if  the  sheriff  were 
in  his  own  county. 

Return,— Sec.  4517.  An  officer  executing  a  judgment  of  imprisonment  shall 
make  a  written  return  of  the  execution  of  such  judgment  forthwith  after  such  execu- 
tion, and  file  the  same  with  the  clerk  of  the  court,  by  which  the  judgment  was  ren- 
dered. 

Execution  for  fine.— Sec.  4518.  Upon  a  judgment  for  a  fine,  a  writ  of  execution 
may  be  issued  as  upon  a  judgment  in  a  civil  case. 

How  judgment  for  abatement  of  nuisance  enforced.— Sec.  4519.  When  the 
judgment  is  for  the  abatement  or  removal  of  a  nuisance,  or  for  anything  other  than 
the  payment  of  money  by  the  defendant,  a  certified  copy  of  the  entry  of  such  judg- 
ment, delivered  to  the  sheriff  of  the  proper  county,  shall  authorize  and  require  him 
to  execute  such  judgment,  and  he  shall  return  the  same  with  his  doings  under  the 
same  thereon  indorsed  to  the  clerk  of  the  court  in  which  the  judgment  was  rendered 
within  seventy  days  after  the  date  of  the  certificate  of  such  certified  copy,  unless  it  be 
a  judgment  of  imprisonment,  which  is  hereinbefore  provided  for, 

KETUKN  TO  JUDGMENT  EXECUTION. 
NO.  lor. 

State  of  Iowa,       ) 

County,     f  ^^• 

I,  A  B,  sheriff  of  said  county,  do  hereby  certify  and  return 

that  I  received  the  within  certified  copy  of  judgment  entry  for 

service  on   the    ....    day  of    ....,18..,  and   by  virtue    thereof 

forthwith  committed  C  D,  the  defendant  therein  named,  to  the  jail 

of  said  county,  as  required  by  said  judgment. 

Witness  my  hand  this  ....  day  of  . . . . ,  18 . . . 

A....  B....,  Sheriff. 

RETURN  WHERE  DEFENDANT  IS  C03IMITTED  TO  THE  PENITENTIARY. 
No.  lOS. 

State  of  Iowa      ) 

County,  f 

I,  A  B,  sheriif  of  said  county,  hereby  certify  and  return, 


ABATEMENT   OF   KUISANCES.  183 

that  I  received  the  within  certified  copy  of  judgment  entry,  for 
service  on  the  ....  day  of  . . . .,  18. .,  and  by  virtue  thereof,  I 
forthwith  conveyed  C  D,  the  defendant  therein  named,  to  the 
penitentiary  at  . . . . ,  Iowa,  and  delivered  the  said  defendant 
to  . . . . ,  warden  of  said  penitentiary,  with  a  duplicate  of  said 
transcrijjt  of  judgment,  on  the  ....  day  .  .  .  of  18  .  . ,  and  at  the  same 
time  took  a  receipt  from  said  warden  of  said  delivery,  hereon 
indorsed,  and  herewith  returned  to  the  clerk  of  the  District  Court 
of  said  county. 

Dated  this  ....  day  of  . . . . ,  18 . . . 

A....  B....,  Sheriff. 

WARDEN'S  RECEIPT. 
No.  109. 

State  op  Iowa,      ) 
County,     \ 

I,  M  H,  warden  of  the  penitentiary  of  said  State  at  . . . . , 
in  said  county,  hereby  certify  that  I  received  from  A  B,  sheriff 
of  ... .  county,  in  said  State,  C  D,  the  defendant  named  in  the 
within  certified  copy  of  judgment  entry,  for  imprisonment  in  said 
penitentiary,  on  the  ....  day  of  . . . .,  18.  .,  at  said  penitentiary, 
and  at  the  same  time  and  place  I  also  received  from  said  sheriff  a 
duplicate  copy  of  said  certified  judgment  entry. 
Witness  my  hand  this day  of  . . . . ,  18 . . . 

M H ,  Warden. 

The  receipt. — The  receipt  should,  with  the  return,  be  indorsed 
on  the  certified  copy,  and  the  whole  should  be  by  the  sheriff 
returned  to  the  clerk  of  the.  court  where  the  judgment  was  ren- 
dered. 

V.    ABATEMENT  OF  NUISANCE. 

RETURN  ON  THE  ABATEMENT  OP  A  NUISANCE. 
No.  IIO. 

State  of  Iowa,      ) 
County,   \ 

I,  A  B,  sheriff  of  said  county,  hereby  (iertify  and  return, 
that  I  received  the  within  certified  copy  of  judgment  entry  for 
execution  on  the  ....  day  of  . . . .,  18. .,  by  [here  state  the  acts 
required  to  ha  done  by  the  judgment,  and  done  by  the  sheriff  by 
virtue  thereof,]  at  .  . . . ,  in  said  county,  and  I  now  return  said 
process  duly  executed,  to  the  clerk  of  the  court  where  said  judg- 
ment was  rendered,  duly  executed. 

Dated  this day  of ,  18 . . . 

A....  B ....,  Sheriff . 


184  BENCU    WAKRENTS   ON    INDICTMENTS,  ETC. 

VI.    OTHER  AND  MINOR  DUTIES.— SUMMARY. 

The  sheriff  is  required  to  serve  requisitions  issued  by  the  Audi- 
tor of  State;  Code,  Sec.  74;  to  cause  a  notice  to  be  deUvered  to 
one  of  the  judj^es  of  election  in  each  precinct,  of  the  number  of 
jurors  apportioned  for  the  ensuing  year  to  his  precinct;  to  sum- 
mon jurors  to  appear  before  the  court  on  the  precept  of  the  clerk; 
Code,  Sec.  237;  to  serve  the  warrant  of  a  coroner;  Code,  Sec. 
362;  and  cause  to  be  published  the  proclamation  of  the  Governor 
of  a  general  election.    Code,  Sec.  578. 


SHEEIFP'S   DUTIES,  ETC.  185 


CHAPTER  XXT. 


JAILS,  PRISONERS,  ETC. 

1.    HIS  DUTY  AS  KEEPER  OF  THE  JAIL  AND    PRIS- 
ONERS. 

Has  charge  of  the  jail. — The  sheriff  has  charge  and  custody 
of  the  jail  or  other  prison  of  his  county,  and  the  prisoners  in  the 
same;  and  is  required  to  receive  those  lawfully  committed  thereto, 
and  keep  them  himself  or  by  his  deputy  or  jailor,  until  discharged 
by  law. 

The  provisions  of  the  Code  in  relation  to  these  duties 

are  as  follows: 

Jails  :  for  wliat  used. — Section  4T23.  The  common  jails  now  erected,  or  which 
may  hereafter  be  erected  in  the  several  counties  in  this  state,  in  charge  of  the  respec- 
tive sheriffs,  are  to  be  used  as  prisons  : 

1.  For  the  detention  of  persons  charged  with  an  offense,  and  duly  committed  for 
trial  or  examination ; 

2.  For  the  detention  of  persons  who  may  be  duly  committed  to  secure  their 
attendance  as  witnesses  on  the  trial  of  any  criminal  cause ; 

3.  For  the  confinement  of  persons  pursuant  to  sentence  upon  conviction 
for  any  offense,  and  of  all  other  persons  duly  committed  for  any  cause  author- 
ized by  law ; 

4.  The  provisions  of  this  section  extend  to  persons  detained  or  committed  by 
authority  of  the  courts  of  the  United  States,  as  well  as  the  courts  and  magistrates  of 
this  state. 

Keeper's  duty. — Sec.  4724.  It  is  the  duty  of  the  keeper  of  the  jail  of  the  county 
to  see  that  the  same  is  constantly  kept  in  a  cleanly  and  healthy  condition,  and  he 
must  pay  strict  attention  to  the  personal  cleanliness  of  all  the  prisoners  in  his  custody 
as  far  as  may  be.  Each  prisoner  must  be  furnished  daily  with  as  much  clean  water 
as  may  be  necessary  for  drink  and  for  personal  cleanliness,  and  with  a  clean  towel 
and  shirt  once  a  week,  and  must  be  served  three  times  each  day  with  wholesome 
food,  which  must  be  well  cooked,  and  in  sufficient  quantity. 

Sheriff's  duty. — Sec.  4725.  The  sheriff  of  the  county  must  kee])  a  true  and 
exact  calendar  of  all  prisoners  committed  to  any  prison  under  his  care,  which  calendar 
must  contain  the  names  of  all  persons  who  are  committed,  their  place  of  abode,  the  lime 


186 


JAILS     PRISONERS,    ETC 


of  their  commitment,  the  time  of  their  discharge,  the  cause  of  commitment,  the 
authority  that  committed  them,  and  description  of  their  persons,  and  when  any 
prisoner  is  liberated,  such  calendar  must  state  the  time  when,  and  the  authority  by 
which  such  liberation  took  place ;  and  if  any  person  escape,  it  must  state  particularly 
the  time  and  manner  of  such  escape. 

Calendar  for  District  Court. — Sec.  4726.  At  the  opening  of  each  term  of  the 
district  court  within  his  county,  the  sheriff  must  return  a  copy  of  such  calendar  under 
his  hand  to  the  judge  of  such  court;  and  if  any  sheriff  neglect  or  refuse  so  to  do,  he 
shall  be  punished  hy  fine  not  exceeding  one  hundred  dollars. 

What  furnished  prisoners. — Sec.  4727.  The  keeper  of  each  jail  must  furnish 
necessary  bedding,  clothing,  fuel,  and  medical  aid  for  all  prisoners  under  his  charge, 
and  keep  an  accurate  account  of  the  same. 

When  jail  takes  fire. — Sec.  4728.  Whenever,  by  reason  of  any  jail  being  on 
fire,  or  any  building  contiguous  or  near  to  a  jail  being  on  fire,  there  be  reason  to 
apprehend  that  the  prisoners  confined  in  such  jail  may  be  injured  or  endangered 
thereby,  the  sheriff  or  keeper  of  such  jail  may,  at  his  discretion,  remove  such  prison- 
ers to  some  safe  and  convenient  place,  and  there  confine  them  so  long  as  may  be 
necessary  to  avoid  such  danger. 

To  report  prisoners  at  each  session  of  District  Conrt. 

— The  calendar  of  prisoners  and  certificate  of  the  sheriff  to  a 
copy  thereof  required  by  the  foregoing  provisions  may  be  in  the 
following  form: 

CALENDAR  AND  CERTIFICATE. 
No.  111. 

To  the  District  Court County, Term,  18 . . 

The  following  is  a  copy  of  the  calendar  of  prisoners  imprisoned 
in  the  jail  of  said  county,  to- wit: 

PRISON   CALENDAR,    ....    COUNTY,   IOWA. 


RESIDENCE. 

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State  of   Iowa,      ) 
....    County.    ) 
I, ,  sheriff  of  said  county,  hereby  certify  that  the  fore- 


INSPECTOES    OF   JAILS.  187 

going  is  a  copy  of  the  calendar  of  all  prisoners  committed  to  the 
jail  of  said  county,  under  my  care  since  ....... 

Dated  this  ....  day  of  . . . . ,  18 . . 

,  Sheriff. 

The  Code  further  provides  as  follows  : 

II.    INSPECTORS  OF  JAILS. 

Who  constitute. — Section  4729.  In  each  county  of  this  state  the  judge  of  the 
circuit  court  and  district  attorney  are  inspectors  of  the  jails  respectively,  and  have 
power,  from  time  to  time,  to  visit  and  inspect  the  same,  and  inquire  into  all  matters 
connected  with  the  government,  discipline,  and  police  of  such  prisons. 

Their  duty. — Sec.  4730.  It  is  the  duty  of  such  inspectors  to  visit  and  inspect 
such  prisons  twice  each  year,  and  at  the  next  district  court  which  is  thereafter  held 
in  their  county,  to  present  to  such  court  on  the  first  day  of  its  sitting,  a  detailed  report 
of  the  condition  of  such  prisons  at  the  time  of  such  inspection. 

Report. — Sec.  4731.  Such  report  must  state  the  number  of  persons  confined  in 
such  prison,  and  for  what  cause  respectively,  the  number  of  persons  usually  confined 
in  one  room,  the  distinction,  if  any,  usually  observed  in  the  treatment  of  the  prison- 
ers, the  evils,  if  any,  found  to  exist  in  such  prisons;  and  particularly  whether  any  pro- 
visions of  this  chapter  have  been  violated  or  neglected,  and  the  cause  of  such  viola- 
tion or  neglect. 

Eight  to  inspect :  given  fully.— Sec  4732.  The  keepers  of  such  prisons  shall 
admit  the  said  inspectors,  or  any  of  them,  into  any  part  of  such  prisons,  to  exhibit  to 
them  on  demand,  all  the  books,  papers,  documents,  and  accounts  pertaining  to  the 
prison  or  to  the  prisoners  confined  therein,  and  to  render  them  every  other  facility  in 
their  power  to  enable  them  to  discharge  the  duties  above  prescribed. 

May  swear  officers. — Sec  4733.  For  the  purpose  of  obtaining  the  necessary 
information  to  enable  them  to  make  such  reports  as  is  above  required  in  this  chapter, 
the  said  inspectors  have  power  to  examine  on  oath,  to  be  administered  by  either  of 
them,  any  of  the  officers  of  such  prison,  or  any  of  the  prisoners  therein. 

Sefractory  prisoners. — Sec  4734.  If  any  person  confined  in  any  jail  upon  a 
conviction  or  charge  of  any  offense,  is  refractory  or  disorderly,  or  if  he  willfully  des- 
troy or  injure  any  article  of  bedding,  or  other  furniture,  door,  or  window,  or  any  other 
part  of  such  prison,  the  sheriff  of  the  county,  after  due  inquiry,  may  chain  and  secure 
such  person,  or  cause  him  to  be  kept  in  solitary  confinement  not  more  than  ten  days 
for  any  one  offense ;  and  during  such  solitary  confinement  he  must  be  fed  with 
bread  and  water  only,  unless  other  food  is  necessary  for  the  preservation  of  his 
health. 

Sec.  4735.  All  charges  and  expenses  of  safe  keeping  and  maintaining  convicts 
and  persons  charged  with  public  offenses  and  committed  for  examination  or  trial  to 
the  county  jail,  shall  be  paid  from  the  county  treasury,  the  accounts  therefor  being 
first  settled  and  allowed  by  the  board  of  supervisors ;  except  prisoners  committed  or 
detained  by  the  authority  of  the  courts  of  the  United  States,  in  which  cases  the  United 
States  must  pay  such  expenses  to  the  county. 


188  JAILS,   PRISONERS,   ETC. 

III.  TO  KEEP  ACCURATE  ACCOUNTS. 

The  sheriff,  by  the  provisions  of  the  above  statutes  is  required 
to  keep  accurate  accounts  of  all  proper  charges,  and  expenses  of 
maintaining  the  prisoners  which  should  be  paid  by  the  county, 
except  the  expenses  of  keejjing  prisoners  committed  by  the 
United  States  courts,  which  should  be  paid  by  the  United  States. 

Accounts  for  keeping  the  prisoners  should  be  properly  made 
out  and  presented  to  the  board  of  supervisors  of  the  county  for 
allowance,  and  if  found  correct  and  just  should  be  allowed  and 
settled  by  them. 

lY.    IMPRISONMENT    AT    HARD  LABOR,  AND  DUTY 
TO  PRISONERS. 

In  relation  thereto  the  Code  provides: 

May  be  required  to  labor. — Section  4736.  Any  able-bodied  male  person  over 
the  age  of  sixteen  years,  and  not  over  the  age  of  fifty  years,  now  or  hereafter  con- 
fined in  any  jail  in  this  state,  under  the  judgment  of  any  court  of  record  or  of  any 
other  tribunal  authorized  to  imprison  for  the  violation  of  any  law,  ordinance,  by-law, 
or  police  regulation,  may  be  required  to  labor  during  the  whole  or  part  of  the  time  of 
his  sentence,  as  hereinafter  provided,  and  such  court  or  other  tribunal,  when  passing 
final  judgment  of  imprisonment,  whether  for  non-payment  of  fine  or  otherwise,  shall 
have  the  power  to  determine,  and  shall  determine,  whether  such  imprisonment  shall 
be  at  hard  labor  or  not. 

Sec.  4737.  Such  labor  may  be  on  the  roads,  streets,  or  public  highways,  on  or 
about  public  buildings  or  grounds,  or  at  such  other  places  in  the  county,  where  con- 
fined, and  during  such  reasonable  time  of  the  day  as  the  person  having  charge  of  the 
prisoners  may  direct,  and  not  exceeding  eight  hours  per  day. 

Sec.  4738.  In  case  the  sentence  be  for  the  violation  of  any  of  the  statutes  of  the 
state,  the  sheriff  of  the  county  where  the  imprisonment  is,  shall  superintend  the  per- 
formance of  the  labor  herein  contemplated,  and  shall  furnish  the  tools  and  material, 
if  necessary,  to  work  with  at  the  expense  of  the  county  in  which  the  convict  is  con- 
fined, and  such  county  shall  be  entitled  to  his  earnings. 

Sec  4739.  When  the  imprisonment  is  pursuant  to  the  judgment  of  any  court, 
police  court,  police  magistrate,  mayor,  or  other  tribunal  of  any  incorporated  city  or 
town,  for  the  violation  of  any  ordinance,  by-law,  or  other  regulation,  the  marshal 
shall  superintend  the  performance  of  the  labor  herein  contemplated,  and  shall  fur- 
nish the  tools  and  materials  if  necessary,  at  the  expense  of  the  city  or  town  requiring 
the  labor,  and  such  city  or  town  shall  be  entitled  to  the  earnings  of  its  convicts. 

Sec.  4740.  The  officer  having  charge  of  any  convicts,  for  the  purpose  specified 
in  this  chapter,  may  use  such  means  as,  and  no  more  than,  are  necessary  to  prevent 
escape,  and  if  any  convict  attempt  to  escape,  either  while  going  from  or  returning  to 
the  jail,  or  while  at  labor,  or  at  any  time,  or  if  he  refuse  to  labor,  the  officer  having 
him  in  charge,  after  due  inquiry,  may,  to  secure  such  person,  or  to  cause  him  to 
labor,  use  the  means  authorized  by  section  four  thousand  seven  hundred  and  thirty- 
four  of  this  chapter  ;  provided,  such  punishment  shall  be  inflicted  within  the  jail  or  the 


IMPRISOISTMENT,    ETC.  189 

jail  enclosure  for  refusal  to  work,  and  shall  not  be  considered  as  any  part  of  the  time 
for  which  the  prisoner  is  sentenced, 

Prisoners  credited  for  labor. — Sec.  4741.  For  every  day's  labor  performed  by 
any  convict  under  the  provisions  hereof,  there  shall  be  credited  on  any  judgment  for 
fine  and  costs  against  him,  the  sum  of  one  dollar  and  fifty  cents,  and  no  person  shall  be 
entitled  to  the  benefits  of  the  law  providing  for  the  liberation  of  poor  convicts,  if,  in 
the  opinion  of  the  sheriff,  the  judgment  may  be  satisfied  by  the  labor  of  the  person  as 
herein  authorized. 

Cruel  treatment  of  prisoners. — Sec.  4742.  If  any  officer  or  other  person  treat 
any  prisoner  in  a  cruel  and  inhuman  manner,  he  shall  be  punished  by  fine  not 
exceeding  one  thousand  dollars,  or  by  imprisonment  in  the  county  jail  not  exceeding 
twelve  months,  or  by  both  such  fine  and  imprisonment. 

Duty  of  officer  in  charge  of  prisoners. — Sec.  4743.  Tlie  officer  having  such 
prisoner  in  charge  shall  protect  him  from  insult  and  annoyance,  and  communication 
with  others  while  at  labor,  and  going  to  and  returning  from  the  same,  and  he  may 
use  such  means  as  are  necessary  and  proper  therefor;  and  any  person  persisting  in 
insulting,  and  annoying,  or  communicating  with  any  prisoner,  after  being  com- 
manded by  such  officer  to  desist,  shall  be  punished  by  a  fine  not  exceeding  ten  dol- 
lars, or  by  imprisonment  not  exceeding  three  days. 


190  sheriff's  duty  to  attend  on  cotjets. 


CHAPTER  XXYI. 


SHERIFF'S  DUTY  TO  ATTEND  ON  COURTS. 

To  attend  courts  and  appoint  bailiffs.— The  Code  pro- 
vides that  the  sheriff  shall  attend  on  the  District  and  Circuit 
Courts  of  his  county,  and  while  either  remains  in  session,  he  shall 
be  allowed  the  assistance  of  such  number  of  bailiffs  as  either 
court  may  direct.  The  bailiffs  shall  be  appointed  by  the  sheriff  and 
shall  be  regarded  as  deputy  sheriffs,  and  for  whose  acts  the 
sheriff  shall  be  responsible.     Code,  Sec.  341. 

May  require  bond  of  bailiff. — The  sheriff  may  require 
bonds  of  his  bailiffs,  and  they  may  perform  any  act  in  the  name 
of  the  sheriff,  which  could  lawfully  be  done  by  the  sheriff. 

Duty  to  preserve  order  and  silence.— Among  the  duties 

of  the  sheriff,  and  his  deputies  and  bailiffs  in  attendance  on  the 
courts  are  to  preserve  order  and  silence  in  court,  and  prevent 
anything  which  interferes  with  the  proper  business  of  the  court; 
and  on  the  opening  and  adjournment  of  the  court  from  day  to 
day,  to  proclaim  the  fact  publicly. 

The  following  forms  may  be  used  for  that  purpose: 

ON  OPENING  COTJET. 
No.  112. 

Hear  ye!  hear  ye!  hear  ye!  The  District  Court  of  ....  county 
is  now  in  session. 

ON  ADJOURNMENT. 
No.  113. 

Hear  ye!  The  District  Court  of  ....  county  is  adjourned  till 
to-morrow  morning  at  9  o'clock. 

ON  OPENING  COUET  AFTER  ADJOURNMENT. 

No.    114r. 

Hear  ye!  The  District  Court  of  ....  county  is  now  in  session 
pursuant  to  its  adjournment. 


DUTIES    OF    SHERIFF.  191 

Other  duties  of  the  sheriff  and  bailiffs  .—It  becomes  the 

duty  of  the  sheriflf  or  his  deputies,  or  bailiffs,  under  the  direction 
of  the  court  to  take  charge  of  witnesses  excluded  from  the  court 
during  the  trial  of  a  cause;  to  bring  in  witnesses  required  on  a 
trial,  who  are  absent  from  court;  to  serve  bench  warrants  and 
attachments  that  may  be  ordered  by  the  court;  to  take  charge  of 
the  trial  jury;  to  attend  on  the  grand  jury;  and  to  wait  upon  and 
obey  the  lawful  orders  of  the  court  in  all  matters. 

Judicial  notice. — The  court  will  take  judicial  notice  of  the 
sheriff  and  of  all  officers  of  the  court.     7  Iowa,  56. 


192  LIABILITY    OF    SHERIFF    AND    DEPUTIES. 


CHAPTER  XXYII. 


LIABILITY  OF    SHERIFF  AND  HIS  DEPUTIES. 

Tecliiiical  objections  disregarded.— The  sheriflF,  as  well 
as  his  sureties  on  his  official  bond,  are  liable  for  a  breach  of  offi- 
cial dut}^;  for  non-performance  as  well  as  mal-performance  thereof ; 
and  courts  will  disregard  objections  to  bonds  purely  technical, 
and  hold  such  undertakings  invalid  only  upon  the  most  cogent 
and  satisfactory  grounds. 

A  bond  good  as  a  voluntary  obligjition  .—And  the  bond 

of  a  public  officer,  though  not  good  as  a  statutory  undertaking, 
may  be  good  as  a  voluntary  obligation,  and  an  action  at  common 
law  will  lie  thereon.     8  Iowa,  129  and  553. 

Sureties  not  liable  after  the  expiration  of  the  term . 

— Sureties  are  not  liable  on  the  official  bond  of  an  officer,  for  the 
acts  of  the  officer  committed  after  the  expiration  of  the  term  for 
which  he  was  elected,  and  after  the  time  allowed  by  law  for  the 
person  elected  as  his  successor  to  qualify,  although  such  may  not 
have  qualified,  and  the  former  incumbent  may  have  continued  to 
act  as  such  officer.     10  Iowa,  39. 

Liability   to  damages  on    sale  without   levy    and 

notice. — The  officer  is  liable  for  damages  sustained  by  a  sale  of 
land  without  a  levy  and  the  notice  of  sale  required  by  law,  if  the 
plaintiff  is  thereby  deprived  of  his  title.     3  G,  Greene,  246. 
Sureties  when  not  liable  for  money.— But  where  money 

is  intrusted  to  a  sheriff,  which  should  be  paid  to  the  clerk,  the 
sureties  on  the  sheriffs  bond  are  not  liable  therefor.  Nor  would 
they  be  liable  for  any  act  of  the  sheriff  before  they  became 
sureties.     4  G.  Greene,  117. 


LIABILITY    OF    SHERIPF    AND    DEPtTTIES.  193 

Sureties  liable  in  other  cases. — But  the  sureties  would 

be  liable  for  money  in  the  hands  of  the  officer  by  virtue  of  his 
office  at  the  time  the  bond  was  given,  and  the  sheriff  and  his 
sureties  would  be  liable  for  all  damages  for  failure  to  take  a  bond 
required  by  law,  or  where  the  bond  taken  was  not  sufficient  in 
form  or  amount,  or  the  obligors  not  responsible,  if  he  did  not  exer- 
cise proper  prudence  and  judgment  in  the  matter,  and  took  no 
oath  as  to  their  responsibility,  or  where  he  neglects  to  serve  pro- 
cess or  make  a  proper  return  thereof,  or  makes  a  false  return,  or 
where  he  levies  on  property  exempt  from  execution.  20  Iowa, 
260;  11  Iowa,  158. 

Sureties  on  substituted  bond:  when  not  liable.— The 

sureties  on  a  substituted  bond  are  not  liable  for  moneys  coming 
into  the  hands  of  a  principal  prior  to  the  execution  of  such  bond 
and  during  the  existence  of  a  prior  bond,  for  which  the  substi- 
tuted bond  was  given.     22  Iowa,  3G0. 

Liability  of  principal. — The  principal  is  liable  in  all  cases 
for  a  failure  to  do  his  official  duty  to  all  parties  damaged  thereby. 

Statute  of  limitations. — All  actions,  however,  against  an 
officer  growing  out  of  a  liability  incurred  by  doing  an  act  in  an 
official  capacity  or  by  omission  of  an  official  duty,  including  the 
non-payment  of  money  collected  on  execution,  must  be  brouo-ht 
within  three  years  after  their  causes  accrue  and  not  afterward. 
Code,-  Sec.  2529. 

Judgments  on  motions.— A  judgment  against  a  sheriflf  may 
be  obtained  on  motion  by  the  plaintiff  in  an  execution,  for  the 
recovery  of  money  or  property  collected  on  execution.  Code, 
Sec.  2906. 

May  perform  the  duty  of  constables . — The  sheriff  may 
perform  any  of  the  duties  required  of  a  constable,  and  when  any 
process  from  a  justice's  court  is  delivered  to  him  for  service  it  is 
his  duty  to  serve  it  the  same  as  the  constable.     Code,  Sec.  3633. 


13 


104  FEES   AND   COMPEIfSATION. 


CHAPTER   XXYIII. 


FEES  AND  COMPENSATTOX. 


I.     GENERAL  PROVISIONS. 

On  this  subject  the  Code  provides: 

Sheriff. — Section  378S.  The  sheriff  is  entitled  to  charge  and  receive  the  follow- 
ing fees : 

For  attending  the  supreme  court,  to  be  paid  out  of  the  amount  appropriated  fir 
contingent  expenses  of  such  court,  two  dollars  per  day ; 

For  servi.ig  any  order  or  notice  and  making  return  thereof,  for  the  first  person 
served,  fifty  cents  ;  for  each  additional  person  served,  twenty-five  cents  ;  and  for  each 
warrant  two  dollars  and  mileage,  and  all  necessary  expenses  as  sworn  to  by  the 
sheriff; 

For  each  copy  of  such  order,  warrant,  or  notice,  when  required,  for  each  hundred 
words,  ten  cents ; 

For  serving  any  order  or  warrant,  and  calling  to  his  aid  when  necessary  to  serve 
the  same  the  power  of  the  county,  one  dollar  and  fifty  cents; 

Each  commitment  to  prison,  twenty-five  cents; 

Discharge  from  same,  twenty-five  cents; 

Attending  with  a  person  before  a  court  or  judge  when  required,  for  each  day, 
besides  mileage,  one  dollar ; 

Copy  of  a  paper  required  by  law,  when  made  by  him,  for  each  hundred  words,  ten 
cents ; 

For  serving  and  returning  subpoena  for  each  person,  twenty  cents ; 

Calling  a  jury  in  each  case,  ten  cents  ; 

Summoning  a  grand  or  trial  jury,  for  each  panel,  including  mileage,  to  be  paid  out 
of  the  county  treasury,  eight  dollars ; 

Traveling  fees  in  other  eases  required  by  law,  going  and  returning,  per  mile,  five 
cents ; 

Selling  land  or  other  property  on  execution,  for  each  day,  one  dollar; 

Making  and  executing  a  deed  for  land  sold  on  execution,  one  dollar; 

Summoning  a  jury  in  cases  of  forcible  entry  and  detainer,  including  mileage,  one 
dollar  and  fifty  cents ; 

Serving  an  execution  or  order  for  the  partition  of  real  estate,  or  assignment  of 
dower,  two  dollars; 

For  taking  each  bond  required  by  law,  twenty-five  cents; 

For  summoning  a  jury  to  assess  the  damages  to  the  owner  of  lands  taken  for  any 


GEITERAL   PROVISIONS,   ETC.  195 

work  of  internal  improvements,  and  attending  upon  them,  including  mileage,  five 
dollars ; 

If  such  case  occupies  more  than  one  day  for  each  day,  or  fraction  thereof,  one 
dollar  and  fifty  cents; 

For  serving  each  attachment,  one  dollar; 

For  time  necessarily  employed  in  making  an  inventory  of  property  attached  or  levied 
upon,  per  day,  one  dollar  ; 

For  collecting  and  paying  over  money,  on  the  first  two  hundred  dollars,  or  part 
thereof  three  per  cent.; 

On  the  next  three  hundred  dollars  or  part  thereof,  two  per  cent; 

On  all  excess  over  five  hundred  dollars,  one  per  cent; 

But  where  the  property  is  purchased  by  the  plaintiff  in  execution,  or  where  money 
is  collected  without  sale  of  property,  one-half  of  the  above  rates; 

For  returning  any  order,  warrant,  or  notice  not  served,  five  cents; 

For  receiving  a  prisoner  on  surrender  by  bail,  twenty-five  cents; 

For  taking  new  bail  or  bond,  twenty-five  cents  ; 

For  dieting  a  prisoner,  for  each  day,  fifty  cents  ;  and  for  dieting  a  prisoner  in  con- 
veying him  to  state  prison  or  jail  outside  of  his  county,  one  dollar  per  day ; 

For  conveying  each  convict  to  the  penitentiary,  and  as  full  compensation  therefor, 
sixteen  cents  for  each  mile  traveled,  to  be  computed  from  the  county  seat  where  the 
conviction  took  place  by  the  most  direct  route  of  travel ;  the  same  to  be  paid  out  of 
the  county  treasury. 

Salary. — Sec.  3789.  The  sheriff  is  also  entitled  for  attending  district  and  circuit 
court  and  delivering  notices,  including  mileage,  and  for  other  services  for  which  no 
compensation  is  allowed  by  law,  such  annual  salary  in  each  county  with  a  popula- 
tion of  ten  thousand  inhabitants,  not  less  than  fifty  dollars  ; 

In  each  county  with  a  population  of  fifteen  thousand  inhabitants,  not  less  than 
one  hundred  and  fifty  dollars; 

In  each  county  with  a  population  of  twenty  thousand  inhabitants  or  over,  not 
less  than  two  hundred  dollars. 

In  criminal  cases. — Sec.  .3790.  In  all  criminal  cases  where  the  prosecution  fails, 
or  where  the  money  cannot  be  made  from  the  person  liable  to  pay  the  same,  the 
facts  being  certified  by  the  clerk  or  justice  as  far  as  their  knowledge  extends,  and 
verified  by  the  affidavit  of  the  sheriff,  the  fees  allowed  by  law  in  such  cases  shall  be 
audited  by  the  county  auditor,  and  paid  out  of  the  county  treasury. 

Fees  on  seizure  of  intoxicating  liquors. — Sec.  3807.  A  constable  or  other 
officer  who  serves  any  warrant  for  the  seizure  of  intoxicating  liquors  shall  be  allowed  : 

For  such  service,  one  dollar; 

For  the  removal  and  custody  of  such  liquor,  his  reasonable  expenses; 

For  the  destruction  of  such  liquor  under  the  order  of  the  court  his  reasonable 
expenses,  and  one  dollar; 

For  posting  and  leaving  notices,  in  such  cases,  one  dollar. 

II.     FOR  CARRIAGE  HIRE  IN  CERTAIN   CASES. 

The  Code  provides  as  follows  for  carriage  hire: 

Carriage  hire.— Section  3820.  Every  officer  or  person  who  shall  arrest  any  person 
with  a  warrant  or  order  issued  by  any  court  or  officer,  or  who  shall  be  required  to 
convey  a  prisoner  from  a  place  distant  from  the  county  jail  to  such  jail  on  an  order 
of  commitment,  shall  be  allowed  to  charge  as  fees,  wliich  shall  be  collectable  tlie  same 


196  FEES   AND    COMPENSATION, 

as  other  fees  in  criminal  cases,  besides  the  fees  allowed  by  law,  whatever  sums  such 
officer  or  person  shall  actually  and  necessarily  pay  for  carriage  hire  in  so  conveying 
such  person  to  jail. 

III.     FURTHER  FEES. 

Further  fees  are  provided  for  by  Sees.  3822  and  3825,  of  the 
Code: 

On  sales  made  by  him  in  pursuance  of  Chapter  Three,  of  Title  Eleven  of  the  Code, 
four  per  cent  on  the  amount. 

For  conveying  an  insane  person  to  the  insane  hospital  on  the  warrant  of  the  insane 
commissioners,  at  the  rate  of  three  dollars  per  day  for  the  time  necessary  and  actually 
employed,  and  mileage  the  same  as  in  other  cases  for  like  services. 

For  putting  up  an  advertisement  when  not  otherwise  provided  for.  (See  Sec.  3838.) 
Twenty-five  cents. 

For  delivering  defendants,  found  to  be  insane  by  a  jury,  to 
the  insane  asylum,  under  the  provisions  of  Chapter  49,  of  the 
Code,  sheriffs  are  entitled  to  the  same  compensation  as  is  allowed 
for  conveying  convicts  to  the  penitentiary,  i  e.  16  cents  for  each 
mile  traveled,  to  be  computed  from  the  county  seat  where  the 
conviction  took  place,  by  the  most  direct  route  of  travel- 
When  the  sheriff  performs  the  ordinary  duties  of  the  constable 
he  does  so,  not  as  constable,  but  as  sheriff,  and  he  would  undoubt- 
edly be  authorized  to  charge  therefor  sheriflTs  fees. 


PEO VISIONS   OF   THE   CODE.  197 


OHAPTEE  XXIX. 


OF   COUNTY  SUPERVISORS. 


I.     PROVISIONS  OF  THE  CODE. 

The  Code  provides  in  reference  to  county  supervisors  as 
follows: 

Number :  election. — Section  294.  The  board  of  supervisors  in  each  county 
shall  consist  of  three  persons,  except  where  the  number  may  heretofore  have  been,  or 
hereafter  be,  increased  in  the  manner  provided  by  section  two  hundred  and  ninety- 
nine  of  this  chapter.  They  shall  be  qualified  electors,  and  be  elected  by  the  qualified 
voters  of  their  respective  counties,  and  shall  hold  their  office  for  three  years. 

When  elected. — Sec.  295.  At  the  general  election  in  each  year,  there  shall  be  at 
least  one  supervisor  elected  in  each  county,  who  shall  not  be  a  resident  of  the  same 
township  with  either  of  the  members  holding  over,  and  who  shall  continue  in  office 
three  years. 

Meetings  of. — Sec.  296.  The  members  of  the  board  shall  meet  at  the  county 
seat  of  their  respective  counties,  on  the  first  Mondays  of  January,  April,  June,  Sep- 
tember, and  the  first.  Monday  after  the  general  election  in  each  year,  and  such 
special  meetings  as  are  provided  for  by  law. 

Quorum. — Sec.  297.  A  majority  of  the  board  of  supervisors  shall  be  a  quorum  to 
transact  business,  but  should  a  division  take  place  on  any  question  when  only  two 
members  of  the  board  are  in  attendance,  the  question  shall  be  continued  until  there 
is  a  full  board  of  supervisors. 

Besignation. — Sec.  298.  The  absence  of  any  supervisor  from  the  county  for  six 
months  in  succession  shall  be  a  resignation  of  his  office. 

Number:  how  increased. — Sec.  299.  The  board  of  supervisors  of  any  couhty 
may,  and  when  petitioned  to  do  so  by  one-fourth  of  the  electors  of  said  county  shall, 
submit  to  the  qualified  voters  of  the  county  at  any  regular  election,  the  question, 
"  .Shall  the  number  of  supervisors  be  increased  to  five,"  or  "seven,"  as  the  board 
shall  elect  in  submitting  the  question.  If  the  majority  of  the  votes  cast  shall  be  for 
the  increase  of  the  number,  then,  at  the  next  ensuing  election  for  a  su])crvisor,  the 
requisite  additional  supervisors  shall  be  elected,  whos^crms  of  office  shall  be  deter- 
mined by  lot  in  such  a  manner  that  one-half  of  tli^^Uitional  members  shall  hold 
their  office  for  three  years,  and  one-half  for  two  ymr'  In  any  county  where  the 
number  of  supervisors  has  been  increased  to  "  five  "  or  "  seven,"  the  board  of  super- 
visors, on  the  petition  of  one-fourth  of  the  legal  voters  of  the  county,  shall  submit  to 


198  COUNTY    SUPERVISORS. 

the  qualified  voters  of  the  county,  at  any  regular  election  the  question,  "Shall  the 
number  of  supervisors  be  reduced  to  five,"  or  "three?"  If  a  majority  of  the 
votes  cast  shall  be  for  the  decrease,  then  the  board  of  supervisors  shall  be  reduced 
to  the  number  indicated  by  such  vote,  and  thereafter  there  shall  be  annually  elected 
the  number  requisite  to  keep  the  board  full. 

Chapter  39,  of  the  Session  Laws  of  the  Fifteenth  General 
Assembly  (1874),  further  provides  as  follows: 

Board  may  establish  supervisor  districts. — Section  1.  That  the  board  of  super- 
visors of  I'ach  county  may  at  their  regular  meeeting  in  June,  A.  D.  1874,  divide 
their  respective  counties,  by  townships,  into  a  number  of  supervisor  districts,  corres- 
ponding to  the  number  of  supervisors  in  their  respective  counties. 

How  constituted. — Sec.  2.  Such  districts  shall  be  as  nearly  equal  in  population 
as  possible,  and  shall  each  embrace  townships  as  nearly  contiguous  as  practicable, 
each  of  which  said  districts  shall  be  entitled  to  one  member  of  such  board,  to  be 
elected  by  the  electors  of  said  district. 

Election  of,  from  unrepresented  districts. — Sec.  3.  In  case  such  division,  or 
any  subsequent  division,  shall  be  found  to  leave  any  district  or  districts  without  a 
member  of  such  board  of  supervisors,  then  at  the  next  ensuing  general  election  a 
supervisor  shall  be  elected  by  and  from  such  district  having  no  member  of  such 
board;  and,  if  there  be  two  such  districts  or  more,  then  the  new  member  or  members 
of  said  board  shall  be  elected  by  and  from  the  district  or  districts  having  the  greater 
population  according  to  the  last  state  census,  and  so  on  till  each  of  said  districts 
have  one  member  of  such  board. 

Re-districting. — Sec.  4.  Any  county  my  be  re-districted,  as  provided  by  the 
preceding  sections  of  this  act,  once  in  each  and  every  two  years,  and  not  oftener,  and 
nothing  herein  contained  shall  be  construed  or  have  the  effect  to  lengthen  or  dimin- 
ish the  term  of  office  of  any  member  of  such  board. 

Organization  and  powers  of  the  board.— The  follow- 
ing are  the  provisions  of  the  Code  in  reference  to  the  organization 
and  powers  of  the  board : 

Organization :  powers. — Section  300.  The  board  of  supervisors,  at  theii;  first 
meeting  in  every  year,  shall  organize  by  choosing  one  of  their  number  as  chaipnan, 
who  shall  preside  at  p.ll  the  meetings  of  the  board  during  the  year.  Every  chairman 
of  the  board  of  supervisors  shall  have  power  to  administer  an  oath  to  any  person 
concerning  any  matter  submitted  to  the  board  or  connected  with  their  powers. 

Special  meetings. — Sec.  301.  Special  meetings  of  the  board  of  supervisors  shall 
be  held  only  when  requested  by  a  majority  of  the  board,  which  request  shall  be 
in  writing,  addressed  to  the  coimty  auditor,  and  shall  specify  the  object  for  which 
such  special  meeting  is  desired.  The  auditor  shall  thereupon  fix  a  day  for  such 
meeting,  not  later  than  ten  days  from  the  day  of  the  filing  of  the  petition  with  him, 
and  shall  immediately  give  notice  in  writing  to  each  of  the  supervisors  personally,  or 
by  leaving  a  copy  thereof  at  his  residence,  at4east  six  days  before  the  day  set  forsuch 
meeting.  The  notice  shall^MM^ie  time  and  place  where  the  meeting  will  be  held 
and  the  object  of  it,  as  stat^^^^^  petition  ;  and  at  such  special  meeting  no  business 
other  than  that  so  designat^|^Bne  petition  and  notice  shall  be  considered  or  trans- 
acted. The  auditor  shall  also  give  public  notice  of  the  meeting  by  publication  in 
not  exceeding   two  nesvspapers   published  in  the  county,  or,  if  there  be  none,  by 


PROVISIONS    OF    THE    CODE.  199 

causing  notice  of  the  same  to  be  posted  on  the  front  door  of  the  court  house  of  the 
county,  and  in  two  other  pubUc  places  therein,  one  week  before  the  time  set  therefor. 

Failure  of  duty. — Sec.  302.  If  any  supervisor  shall  neglect  or  refuse  to  per- 
form any  of  the  duties  which  are,  or  shall  be,  required  of  him  by  law  as  a  member 
of  the  board  of  supervisors,  without  just  cause  therefor,  he  shall,  for  each  offense, 
forfeit  one  hundred  dollars. 

Powers. — Sec.  303.  The  board  of  supervisors  at  any  regular  meeting  shall  have 
the  following  powers,  to-wit ; 

Chairman. — 1.  To  appoint  one  of  their  number  chairman,  and  also  a  clerk  in 
the  absence  of  the  regular  officers  ; 

Adjourn. — 2.     To  adjourn  from  time  to  time,  as  occasion  may  require ; 

County  property. — 3.  To  make  such  orders  concerning  the  corporate  property  of 
the  county  as  they  may  deem  expedient ; 

Settle  accounts. — 4.  To  examine  and  settle  all  accounts  of  the  receipts  and 
expenditures  of  the  county,  and  to  examine,  settle,  and  allow  all  just  claims  against 
the  county  unless  otherwise  provided  for  by  law; 

Buildings. — 5.  To  build  and  keep  in  repair  the  necessary  buildings  for  the  use 
of  the  county  and  of  the  courts; 

To  insure. — 6.  To  cause  the  county  buildings  to  be  insured  in  the  name  of  the 
county,  or  otherwise,  for  the  benefit  of  the  county  as  they  shall  deem  expedient,  and 
in  case  there  are  no  county  buildings,  to  provide  suitable  rooms  for  county  purposes  ; 

Change  boundaries. — 7.  To  sell  off,  organize,  and  change  the  boundaries  of 
townships  in  their  respective  counties,  designate  and  give  names  thereto,  and  define 
the  place  of  holding  the  first  election ; 

Ferries. — 8.  To  grant  licenses  for  keeping  ferries  in  their  respective  counties  as 
provided  by  law; 

Purchase  real  estate  for  county. — 9.  To  purchase  for  the  use  of  the  county,  any 
real  estate  necessary  for  the  erection  of  buildings  for  county  purposes,  to  remove  or 
designate  a  new  site  for  any  county  buildings  required  to  beat  the  county  seat,  when 
such  removal  shall  not  exceed  the  limits  of  the  village  or  city  at  which  the  county 
seat  is  located; 

Control  officers. — 10.  To  require  any  county  officer  to  make  a  report,  under  o.ath, 
to  them  on  any  subject  connected  witii  the  duties  of  his  office,  and  to  require  any 
such  officers  to  give  such  bonds,  or  additional  bonds,  as  shall  be  reasonable  or  neces- 
sary for  the  faithful  performance  of  their  several  duties  ;  and  any  such  ofiRcer  who 
shall  neglect  or  refuse  to  make  such  -report  or  give  such  bonds  within  twenty  days 
after  lacing  so  required,  may  be  removed  from  office  by  the  board  by  a  vote  of  a 
majority  of  the  members  elected  ; 

County  agents. — 11.  To  represent  their  respective  counties,  and  to  have  the  care 
and  management  of  the  property  and  business  of  the  county  in  all  cases  where  no 
other  provision  shall  be  made  ; 

School  fund. — 12.  To  manage  and  control  the  school  fund  of  their  respective 
counties  as  shall  be  provided  by  law; 

Highways. — 13.  To  appoint  commissioners  to  act  with  similar  commissioners 
duly  appointed  in  any  other  county  or  counties,  and  to  authorize  them  to  Ifiy  out, 
alter,  or  discontinue  any  highway  extending  through  their  own  and  one  or  moro  oth<;r 
counties,  subject  to  the  ratification  of  the  board  ; 

Fix  compensation. — 14.  To  fix  ihe  compensation  of  all  services  of  county  and 
township  officers  not  otherwise  provided  for  by  law  and  to  provide  for  the  payment 
of  the  same ; 


200  COUNTY   SUPERVISORS. 

Submit  to  vote. — 15.  To  authorize  the  taking  of  a  vote  of  the  people  for  the 
re-locatioi)  of  the  county  seat  as  provided  by  law;  * 

Highways. — ^16.  To  alter,  vacate,  or  discontinue  any  state  or  territorial  highway 
within  their  respective  counties; 

17.  To  lay  out,  establish,  alter,  or  discontinue  any  county  highway  heretofore  or 
now  laid  out,  or  hereafter  to  be  laid  through  or  within  their  respective  counties,  as 
may  be  provided  by  law  ; 

Bridges. — 18.  To  provide  for  the  erection  of  all  bridges  which  may  be  necessary, 
and  which  the  public  convenience  may  require  within  their  respective  counties,  and 
to  keep  the  same  in  repair ; 

Bounty. — 19.  To  determine  what  bounties,  in  addition  to  those  already  provided 
by  law,  if  any,  shall  be  offered  and  'paid  by  their  county  on  the  scalps  of  such  wild 
animals  taken  and  killed  within  their  county  as  they  may  deem  it  expedient  to  exter- 
minate.    But  no  such  bounty  shall  exceed  five  dollars. 

Poor  house. — 20.  To  purchase  for  the  use  of  the  county  any  real  estate  necessary 
for  the  erection  of  buildings  for  the  support  of  the  poor  of  such  county  and  for  a 
farm  to  be  used  in  connection  therewith; 

Poor. — 21.  To  have  and  exercise  all  the  powers  in  relation  to  the  poor  given  by 
law  to  the  county  authorities; 

Bules. — 22.  To  make  such  rules  and  regulations,  not  inconsistent  with  law,  as  they 
may  deem  necessary  for  the  government  of  their  body,  the  transaction  of  business, 
and  the  preservation  of  order ; 

Canvassers. — 23.  The  board  of  supervisors  shall  constitute  the  board  of  county 
canvassers ; 

Submit  to  vote :  buildings:  bridges. — 24.  It  shall  not  be  competent  for  said 
board  of  supervisors  to  order  the  erection  of  a  court-house,  jail,  poor-house,  or  other 
building  or  bridge,  where  the  probable  cost  will  exceed  five  thousand  dollars,  nor  the 
purchase  of  real  estate  for  county  purposes  exceeding  two  thousand  dollars  in  value, 
until  a  proposition  therefor  shall  have  been  first  submitted  to  the  legal  voters  of  the 
county,  and  voted  for  by  a  majority  of  all  voting  for  and  against  such  proposition,  at 
a  general  election,  notice  of  the  same  being  given  for  thirty  days  previously  in  a  news- 
paper, if  one  is  published  in  the  county.      »        «        »  See  Code,  page  53. 

II.     PROCEEDINGS    OF    THE     BOARD    TO    BE    PUB- 
LISHED. 

The  Code  provides  in  relation  thereto  as  follows: 

Proceedings  published. — Section  304.  They  shall  cause  to  be  made  out  and 
published  immediately  after  each  regular  or  special  meeting  of  the  board,  in  at  least 
one  newspaper,  if  there  be  one  in  the  county,  and  if  not,  by  posting  on  the  court- 
house door,  a  schedule  of  the  receipts  and  expenditures  of  the  county,  which  shall 
state  the  names  of  all  claimants,  the  amount  claimed,  the  amount  allowed,  for  what 
purpose  allowed,  and  a  full  statement  of  the  amounts  of  the  treasurer's  accounts  at 
the  last  settlement  as  on  his  balance  sheet,  or  account-current  in  making  such 
settlement. 

Majority  of  whole  board  reqviired. — Sec.  305.  No  tax  shall  be  levied,  no  con- 
tract for  the  erection  of  any  public  buildings  entered  into,  no  settlement  with  the 
county  officers  made,  no  real  estate  purchased  or  sold,  no  new  site  designated  for  any 
county  buildings,  no  change  made  in  the  boundaries  of  townships,  and  no  money 


BOOKS   TO   BE    KEPT — VOTE   OF   PEOPLE,  201 

appropriated  to  aid  in  the  construction  of  highways  and  bridges,  without  a  majority 
of  the  whole  board  of  supervisors  voting  therefor  and  consenting  thereto. 

Newspapers:  how  selected. — Sec.  307.  The  board  of  supervisors  shall,  at  its 
January  session  of  each  year,  select  two  newspapers  published  within  the  county,  or 
one,  if  but  one  be  published  therein,  having  the  largest  circulation  in  the  county 
where  published,  in  which  the  proceedings  of  said  board  shall  be  published  at  the 
expense  of  the  county,  and  in  counties  having  eighteen  thousand  inhabitants,  a  paper 
printed  in  a  foreign  language,  if  published  in  said  county,  shall  also  be  selected,  in 
which  such  proceedings  shall  be  published ;  and  the  auditor  shall  furnish  such  papers 
selected  a  copy  of  such  proceedings  for  that  purpose ;  provided,  That  the  cost  of 
such  publication  shall  not  exceed  one-third  the  rate  allowed  by  law  for  legal  adver- 
tisements. 

III.  BOOKS  TO  BE  KEPT  BY  THE  BOARD. 

Books  kept. — Sec.  308.  The  board  is  authorized  and  required  to  keep  the  follow- 
ing books : 

Minute  book. — 1.  A  book  to  be  known  as  the  "minute  book,"  in  which  shall  be 
recorded  all  orders  and  decisions  made  by  them,  except  those  relating  to  highways. 
All  orders  for  the  allowance  of  money  from  the  county  treasury,  shall  state  on  what 
account  and  to  whom  the  allowance  is  to  be  made,  dating  the  same,  and  numbering 
them  consecutively  through  each  year  ; 

Highway  record, — 2.  A  book  to  be  known  as  the  "  highway  record,"  in  which 
shall  be  recorded  all  proceedings  and  adjudications  relating  to  the  establishment, 
change,  or  discontinuance  of  highways ; 

Warrant  book, — 3.  A  book  to  be  known  as  the  "  warrant  book,"  in  which  shall 
be  entered  in  the  order  of  their  issuance,  the  number,  date,  amount,  name  of  drawee 
of  each  warrant  drawn  on  the  treasury,  and  the  number  of  warrants  as  directed  in 
relation  to  the  minute  book. 

IV.     SUBMISSION  OF  CERTAIN  MATTERS  TO  A  VOTE 
OF  THE  PEOPLE. 

To  borrow  money:  and  other  matters.— Section  309.  The  board  of  supervisors 
may  submit  to  die  people  of  the  county  at  any  regular  election,  or  at  any  special 
one  called  for  that  purpose,  the  question  whether  money  may  be  borrowed  to  aid  in 
the  erection  of  any  public  buildings ;  whether  any  species  of  stock,  not  now  pro- 
hibited by  law,  shall  be  permitted  to  run  at  large,  and  at  what  time  it  shall  be  pro- 
hibited ;  and  the  question  of  any  other  local  or  police  regulation  not  inconsistent  with 
the  laws  of  the  state.  And  when  the  warrants  of  a  county  are  at  a  depreciated  value, 
they  may  in  like  manner  submit  the  question  whether  a  tax  of  a  higher  rate  than  that 
provided  by  law  shall  be  levied;  and  in  all  cases  when  an  additional  tax  is  laid  in  pur- 
suance of  a  vote  of  the  people  of  any  county  for  the  special  purpose  of  repaying  bor- 
rowed money,  or  constructing,  or  aiding  to  construct,  any  highway  or  bridge,  such 
special  tax  shall  be  paid  in  money,  and  in  no  other  manner. 

Mode  of  submission. — Sec.  310.  The  mode  of  submitting  such  questions  to  the 
people  shall  be  the  following :  the  whole  question,  including  the  sum  desired  to  be 
raised,  or  the  amount  of  tax  desired  to  be  levied,  or  the  rate  per  annum,  and  the 
whole  regulation,  including  the  time  of  its  faking  effect  or  having  operation,  if  it  be 
of  a  nature  to  be  set  forth,  and  the  penalty  for  its  violation,  if  there  be  one,  shall  be 


203  COUNTY   SUPERVISORS. 

published  at  least  four  weeks  in  some  newspaper  printed  in  the  county.  If  there  be 
no  such  newspaper,  the  publication  shall  be  by  being  posted  up  in  at  least  one 
of  the  most  public  places  in  each  township  in  the  county,  and  in  addition,  in  at 
least  five  among  the  most  public  places  in  the  county  one  of  them  being  the  door  of 
the  court  house,  for  at  least  thirty  days  prior  to  the  time  of  taking  the  vote.  All 
such  notices  shall  name  the  time  when  such  question  will  be  voted  upon,  and  the 
form  in  which  the  question  shall  be  taken,  and  a  copy  of  the  question  submitted, 
shall  be  posted  up  at  each  place  of  voting  during  the  day  of  election. 

To  levy  a  tax. — Sec.  311.  When  a  question  so  submitted  involves  the  borrowing 
or  the  expenditure  of  money,  the  proposition  of  the  question  must  be  accompanied 
by  a  provision  to  lay  a  tax  for  the  payment  thereof,  in  addition  to  the  usual  taxes,  as 
directed  in  the  following  section,  and  no  vote  adopting  the  question  proposed  will  be 
of  effect  unless  it  adopt  the  tax  also. 

Sec.  312.  The  rate  of  tax  shall  in  no  case  be  more  than  one  per  cent,  on  the  county 
valuation  in  one  year.  When  the  object  is  to  borrow  money  for  the  erection  of  pub- 
lic buildings  as  above  provided,  the  rate  shall  be  such  as  to  pay  the  debt  in  a  period 
not  exceeding  ten  years.  When  the  object  is  to  construct,  or  to  aid  in  constructing, 
any  highway  or  bridge,  the  annual  rate  shall  not  be  less  than  one  mill  on  the  dollar 
valuation,  and  any  of  the  above  taxes  becoming  delinquent  shall  draw  the  same  inter- 
est with  the  ordinary  taxes. 

To  make  levy  continuous. — Sec.  313.  When  it  is  supposed  that  the  levy  of  one 
year  will  not  pay  the  entire  amount,  the  proposition  and  the  vote  must  be  to  continue 
tlie  proposed  rate  from  year  to  year,  until  the  amount  is  paid. 

To  record  vote,  etc. — Sec.  314.  The  board  of  supervisors,  on  being  satisfied  that 
the  above  requirements  have  been  substantially  complied  with,  and  that  a  majority  of 
the  votes  cast  are  in  favor  of  the  proposition  submitted,  shall  cause  the  proposition, 
and  the  result  of  the  vote  to  be  entered  at  large  in  the  minute  book,  and  a  notice  of 
its  adoption  to  be  published  for  the  same  time  and  in  the  same  manner  as  above  pro- 
vided for  publishing  the  preliminary  notice,  and  from  the  time  of  entering  the  result 
of  the  vote  in  relation  to  borrowing  or  expending  money,  and  from  the  completion 
of  the  notice  of  its  adoption  in  the  case  of  a  local  or  police  regulation,  the  vote  and 
the  entry  thereof  on  the  county  records  shall  be  in  full  force  and  effect. 

Propositions  may  be  rescinded. — Sec.  315.  Propositions  thus  adopted,  and  local 
regulations  thus  established,  may  be  rescinded  in  like  manner  and  upon  like  notice  by 
a  subsequent  vote  taken  thereon,  but  neither  contracts  made  under  them,  nor  the 
taxes  appointed  for  carrying  them  into  effect,  can  be  rescinded. 

When  they  must  submit  questions. — Sec.  316.  The  board  shall  submit  the 
question  of  the  adoption  or  rescission  of  such  a  measure  when  petitioned  therefor  by 
one-fourth  of  the  voters  of  the  county,  unless  a  different  number  be  prescribed  by 
law  in  any  special  case. 

Becord  is  evidence  of  regularity. — Sec.  317.  The  record  of  the  adoption  or 
rescission  of  any  such  measure  shall  be  presumptive  evidence  that  all  the  proceedings 
necessary  to  give  the  vote  validity  have  been  regularly  conducted. 

When  taz  exceeds  amount  sought. — Sec.  318.  In  case  the  amount  produced  by 
the  rate  of  tax  proposed  and  levied  exceeds  the  amount  sought  for  the  specific  object, 
it  shall  not  therefore  be  held  invalid,  but  the  excess  shall  go  into  the  ordinary  county 
funds. 

Fund  must  be  kept  separate. — Sec.  319.  Money  so  raised  for  such  purposes  is 
specially  appropriated  and  constitutes  a  fund  distinct  from  all  others  in  the  hands  of 
the  treasurer,  until  the  obligation  assumed  is  discharged. 


OATH    OF    OFFICE — SUMMARY.  203 

Y.     OATH  OF  OFFICE,  AND  SUMMARY. 

Oath. — It  will  be  seen  by  reference  to  the  general  provisions 
of  the  Code  and  the  Constitution  contained  in  Chapter  One,  that 
although  supervisors  are  not  required  to  give  bonds,  still  they  are 
required  to  take  an  oath  of  office  to  support  the  Constitution  of 
the  United  States,  and  of  the  State  of  Iowa,  and  to  perform  the 
duties  of  the  office  according  to  the  best  of  their  ability.  Const., 
Sec.  5,  Art.  1. 

SUMMARY  OF  OTHER  PROVISIONS. 

The  limits  of  this  treatise  forbid  any  full  or  exhaustive  treat- 
ment of  the  powers,  duties,  liabilities  and  responsibilities  of  the 
board  of  supervisors.  The  statutes  relating  thereto  niay  be  found 
in  many  chapters  of  the  Code,  of  which  in  addition  to  those 
already  given,  we  can  only  give  a  general  summary. 

They  should  provide  for  a  place  for  holding  courts  in  the  county; 
Code,  Sec.  173;  furnish  the  county  surveyor  with  a  record  book; 
Code,  Sec.  379,  381;  divide  the  county  into  townships  and  estab- 
lish the  boundaries  thereof;  Code,  Sec.  379,  381;  divide  town- 
ships in  certain  cases;  Code,  Sec.  384;  designate  the  place  for 
holding  elections  therein;  Code,  Sec.  385;  order  election  of  town- 
ship collectors  and  approve  their  bonds;  Code,  Sec.  400,401; 
levy  a  tax  to  defray  the  expense  of  the  township  board  of  health; 
Code,  Sec.  420;  assess  the  expense  of  platting  lands  by  the  audi- 
tor in  certain  cases,  and  order  the  same  to  be  paid  out  of  the 
county  treasury,  and  assess  the  lots  pro  rata  therewith.  Code, 
Sec.  5G0. 

Divide  townships  into  precincts.— They  may  divide  the 
townships  into  election  precincts  and  number  or  name  them; 
Code,  Sees.  003,  004;  they  should  provide  each  election  precinct 
with  a  ballot  box,  and  a  lock  and  key  thereto;  Code,  Sec.  614  ; 
fix  the  compensation  of  deputy  county  officers,  in  case  the  princi- 
pal officer  receives  a  salary,  and  is  compelled,  by  the  pressure  of 
business,  to  employ  a  deputy;  Code,  Sec.  771;  levy  taxes  upon 
the  assessed  value  of  taxable  property  at  their  September  ses- 
sion; Code,  Sec.  790;  may  exempt  from  taxation  except  for  State 
purposes,  an  amount  not  exceeding  |J500  for  each  acre  of  forest 


204  COUNTY   SUPERVISORS. 

trees,  less  than  three  years  old,  planted  and  suitably  cultivated  in 
timber,  or  for  each  one  mile,  and  a  proportionate  exemption  for 
each  one-fourth  mile,  of  shade  trees  along  the  highway,  or  for 
each  acre  of  fruit  trees  not  more  than  three  years  old;  Code,  Sec. 
799,  Laws  1874,  Ch.  45 ;  to  classify  property  for  taxation ;  Code,  Sec. 
870;  to  settle  with  the  county  treasurer  on  his  going  out  of  office, 
and  see  that  his  books  are  correctly  balanced,  before  being  passed 
into  the  hands  of  the  treasurer  elect;  Code,  Sees.  831,  917;  to 
establish,  vacate  or  alter  highways;  Code,  Sec.  921;  and  to  cause 
hio"hways  to  be  re-surveyed,  platted  and  recorded,  where  the  field- 
notes  of  the  original  survey  have  been  lost,  or  where  the  original 
survey  or  record  was  defective,  or  its  location  cannot  be  deter- 
mined; ('ode.  Sec.  064;  to  grant  licenses  for  toll  bridges;  Code, 
Sec-  1003;  to  license  ferries,  and  prescribe  rates  of  ferriage;  Code, 
Sees.  1011-1012;  and  the  license  must  be  entered  on  the  records 
and  contain  the  rates  of  toll  allowed;  Code,  Sec.  1019;  cause  to 
be  entered  a  statement  of  railroad  property;  Code,  Sec.  1321;  fix 
the  location  of  railroad  bridges  over  certain  streams,  and  impose 
terms  and  conditions  thereon;  Code,  Sec.  1031;  construct  drains 
and  change  any  water  course  in  certain  cases;  Code,  Sec.  1207; 
order  'the  removal  of  a  pauper  to  the  county  of  his  settlement; 
Code,  Sec.  1357;  order  relief  furnished  paupers  to  be  paid  out  of 
the  county  treasury;  Code,  Sec.  1303;  establish  a  poor-house,  and 
make  contracts  and  prescribe  rules  in  relation  thereto;  Code,  Sec. 
303;  levy  a  tax  for  the  support  of  the  poor,  let  out  the  use  of 
the  poor-house  farm  and  the  support  of  the  poor  for  a  period 
not  exceeding  three  years;  Code,  Sees.  1381,  1382;  and  remit  the 
taxes  on  property  destroyed  by  fire  or  tornado;  Code,  Sec.  800, 
amended  by  Session  Laws,  1874,  Chap.  G6. 

County  board  of  equalization.— The  board  of  supervisors 

constitute  a  county  board  of  equalization,  and  must  equalize  the 
assessments  of  the  several  townships  of  their  county  at  their  reg- 
ular meeting  in  June  in  each  year,  substantially  as  the  State  board 
equalize  assessments  among  the  several  counties  of  the  State. 
Code,  Sec.  831. 

Bridges. — They  have  power  to  aid  in  the  construction  of 
bridges  in  certain  cases,  but  onh'  at  the  rate  of  forty  dollars  a 
lineal  foot;  but  cannot  exceed  a  total  of  fifteen  thousand  dollars. 
Code,  Sec.  303. 


A-ITDITOR  TO   MAKE   ACCOUNTS.  205 


OHAPTEE  XXX. 


THE  RECORDS. 


I.    THE  AUDITOR  TO  MAKE  RECORDS. 

The  county  auditor  is  required  to  record  all  proceedings  of  the 
board  in  proper  books  provided  for  that  purpose. 

The  minute  book. — The  board  is  required  to  keep  a  minute 
book,  in  which  the  auditor  should  record  all  orders  and  decisions 
made  by  the  board,  except  those  relating  to  highways. 

^  ENTRY  OF  MINUTES. 

No.  115. 

The  County  Auditor's  Office,   County^  State  of  Iowa, 

January   . . . .,  18. . 

The  supervisors  of  ....  county,  Iowa,  met  at  the  office  of  the 
auditor  of  said  county,  this  ....  day  of  .January,  18. . 

Present:  H  S,  supervisor  holding  over,  and  G  G  B,  J  A  C, 
W  J  B,  and  J  S,  supervisors  elected  at  the  last  general  election, 
and  C  C,  auditor. 

The  supervisors  elect  were  then  duly  qualified  by  taking  and 
subscribing  an  oath  of  office  as  required  by  law,  and  proceeded 
to  draw  lots  for  their  terms  of  office,  whereupon  W  J  B  and  G  G 
B  each  drew  for  the  term  of  three  years  from  the  first  day  of 
January,  18. .,  and  J  A  C  and  J  S,  for  the  term  of  two  years 
each,  from  the  first  day  of  January,  18 . . . 

The  board  was  thereupon  duly  organized  by  the  election  of  J 
A  C,  permanent  chairman  of  said  board. 

The  following  proceedings  were  then  had: 

On  motion,  standing  committees  were  appointed  as  follows: 

On  Highways  and  Bridges — G. ...  G. . . .  B. . . . 

On  Finance — W ....  J .  . .  .  B . .  . . 

On  Paupers — H ....  S .  .  .  . 

On  S\vam[)  I^ands — G. ...  G. . . .  B. . . . 

On  Public  Buildings— II. ...  S. . . . 


20G  THE    RECORDS, 

On  Claims— TI...  S....,  J....   A....  C....,  G....  G.... 

On  Equalization — J.  ...  S. . . . 

On  School  Fund— J. . . .  A. . . .  C  . . .,  J. . . .  S  ... 

On  Official  Bond— J  ....  A. . . .  C. . . . 

On  the  Poor  House — J ....  S .  . . . 

On  Salaries— W J B 

The  following  rules  and  regulations  of  the  board  were  then 
adopted,  to-wit:  [Here  insert  any  rules,  regulations,  or  order  of 
business  that  may  be  adopted]. 

The  board  then  adopted  the  following  classification  and  sched- 
ule of  average  valuation  of  personal  property  therein  designated 
to  aid  the  assessors,  to-wit:  [Here  copy  the  schedule  of  average 
valuation]. 

And  thereupon  the  board  proceeded  to  fix  the  amount  of  the 
official  ])onds  of  county  and  township  officers  as  follows: 

County  Treasurer's  bond $100,000 

County  Coroner's  bond 500 

County  Surveyor's  bond 1,000 

County  Auditor's  bond 10,000 

County  Sheriffs  bond 10,000 

County  Superintendent's  bond 1,000 

Justice  of  the  Peace's  bond 1,000 

Constable's  bond 500 

Assessor's  bond 1,000 

Collector's  bond 10,000 

[This  last  should  be  in  double  the  amount  of  tax  to  be  collected 

by  them.] 

Whereupon  the  committee  on  official  bonds  made  a  report  in 
favor  of  the  approval  of  the  following  official  bonds,  and  the  sure- 
ties thereon,  to-wit: 

J  H  D— County  Treasurer  elect $100,000 

VCW—     "  Coroner  elect 500 

J  H  J—        "  Surveyor  elect 1,000 

C  C—           "  Auditor  elect 10,000 

AJB—      "  Sheriff  elect 10,000 

AB —          "  Superintendent  elect 1,000 

R  D —  Justice  of  the  Peace  ....  Tp.  500 

S  D  P--  Constable "  500 

J  B  McQ—  Assessor "  1,000 

E  V  M—  Collector,  ....  Tp 6,000 

And  thereupon,  on  motion,  said  report  was  adopted,  and  said 
bonds  with  the  sureties  thereto  were  approved. 

And  thereupon  said  officers,  having  taken  and  subscribed  an 
official  oath  on  said  bonds,  were  duly  qualified  for  said  several 
officers  respectively  as  required  by  law. 

The  following  claims  were  then  taken  up  for  action  thereon  by 


THE    HIGHWAY    BOOK. 


207 


the  board  and  were   duly   considered  and  orders  made  thereon  as 
follows: 


E 

•d 

•3 

'ri 

6 

Name  of  Claimant. 

Nature  of  Claim, 

a 
o 

B 

B  <« 

•a 

^ 

< 

< 

J- 

E. 
E  . 
R  . 
A  . 
H  . 
V  . 


8  V 

9  S  . 
lOE 


G 

B 

B 

,  D 

J  ■ 
O. 
C  . 

c . 

D  . 
B 


McG. 
C  .    . 


G  . 
F. 

W  . 

w, 
p . 


Services  as  Comm'r  of  Insanity 

"         Supt.  of  Sch 

"         attending  pauper     .    . 

J.  P.,  State  V.  Gill  .    . 
"         Township  Trustee  .    . 

Const.,  State  v.  Gill  . 
"  Cor.  in  caseof  B,  dec'd 
"  Township  Clerk  .  .  . 
"  Const.,  State  v.  Hay  . 
"         Med.  attend.  Pauper  . 


20  00 

22  00 
5  00 
9  00 
4  00 

12  00 
9  00 

15  00 


20  00 

00  00 
5  00 
9  00 
4  00 

12  00 
9  00 

15  00 


7  50n'tal'd 
22  00    20  00 


Jan.  4,  1874. 


In  the  matter  of  the  petition  of  N  H,  to  reduce  his  assessment 
J   S,   committee   on   equalization  reports    against    granting  the 
petition ;  whereupon    said  report  was  adopted,  and  said  petition 
was  denied. 

The  matter  of  the  appointment  by  A  J  B,  sheriff,  of  D  W,  as 
his  deputy,  duly  made  and  certified  in  writing  to  the  board,  came 
up  fur  approval: 

Whereupon  it  appearing  that  a  deputy  sheriflF  is  necessary, 
and  that  he  has  given  the  requisite  bond  to  his  principal,  and 
that  he  has  duly  taken  and  subscribed  an  official  oath  on  said 
appointment,  the  board  on  motion  duly  approved  of  said  appoint- 
ment. 

In  the  matter  of  the  petition  of  P  S,  for  the  erection  of  a  bridge 
at  ....  Ford,  on  the  South  Fork  of  the  Maquoketa  river  in  .... 
township;  the  committee  report  in  favor  of  the  same,  and  recom- 
mend that  the  contract  therefor,  be  let  to  the  lowest  bidder  under 
sealj  to  be  built  according  to  the  plan  and  draft  thereof  made, 
and  also  reported  by  said  committee;  and  that  the  sum  of  $. . . . 
be  appropriated  therefor,  out  of  the  bridge  fund,  to  be  drawn  on 
the  order  of  the  bridge  committee.     Said  report  was  adopted. 

The  foregoing  forms  are  probably  adequate  to  illustrate  the 
mode  in  which  the  record  may  be  kept,  and  can  be  varied  to  suit 
almost  any  record  required  to  be  made. 


II.     THE  HIGHWAY  BOOK. 

The  board  of  supervisors  are  also  required  to  keep  a  book  to 
be  known  as,  "  The  Highway  Book,"  in  which  must  be  recorded 
all  proceedings,  and  adjudications  relating  to  the  establishment, 
change  or  vacation  of  highways.  And  any  order  made  or  action 
taken  in  relation  to   highways  shall  be   entered,  distinguishing 


208  THE    KECOBDS. 

between  those  made  by  the  auditor,  and  those  made  by  the  board 
of  supervisors. 

The  highway  record  may  be  in  the  following  form. 

No.  IIG.  HIGHWAY  BOOK. 

Auditor's  Office,  County  of  ...  .^  State  of  Iowa,  . . . . ,  18 . . 

In   the  matter   of  the   petition  of and  others,  for  the 

location  of  a  highway  in  ....  township,  in  said  county: 
The  petition  in  the  above  case  having  been  this  day  presented 
to  the  undersigned,  auditor  of  said  county,  describing  the  loca- 
tion, and  the  commencement  and  terminus  of  the  proposed  high- 
way, and  a  liond  having  been  presented  by  the  petitioners  for  the 
payment  of  the  cost«  and  expenses  herein,  and  duly  approved  by 
me,  F  M  B  is  appointed  a  commissioner  to  view  said  proposed 
highway  on  the  ....  day  of  . .  . . ,  18.  .,  and  report  to  me  on  the 
expediency  thereof  on  or  before  the    ...     day  of  .  .  . .,  18.  . 

C . . . .  C . . . . ,  Auditor. 

Office  of  the  County  Auditor  of  ....  County^  loioa,  . .  . ,  18 . . 

In  the  matter  of  the  petition  of  . .  .  . ,  and  others,  for  the  location 
of  a  highway  in  ....  township,  in  said  county: 
The  report  of  F  M  B,  commissioner  appointed  herein  by  me, 
the  undersigned,  auditor  of  said  county,  to  view  and  report  to 
me  the  expediency  of  the  proposed  highway,  having  this  day 
been  made  in  favor  of  the  expediency  and  of  the  establishment 
thereof,  and  he  having  also  reported  an  accurate  survey  thereof, 
accompanied  with  his  field-notes  of  the  survey,  and  a  plat 
thereof;  I  hereby  appoint  the  ....  day  of  .  .  . . ,  18. .,  as  the  day 
when  further  action  will  be  taken  in  the  premises. 

C  ...   C . . . . ,  Auditor. 

Office  of  the  Auditor  of  ....  County,  loioa,  . . . . ,  18 . . 

In  the  matter  of  the  petition  of  . . . . ,  and  others,  for  the  location 
of  a  highway,  in  ....  township,  in  said  county. 
It  appearing  to  the  undersigned,  auditor  of  said  county,  that 
due  notice  of  this  proceeding,  and  that  all  claims  for  damages, 
by  reason  of  the  establishment  of  said  highway,  and  all  objec- 
tions thereto,  must  be  filed  in  this  office  before  this  time,  has 
been  duly  served  on  each  owner  and  occupier  of  lands  in  the 
proposed  highway,  and  abutting  on  the  same,  and  duly  published 
as  required  by  law,  and  that  .J  T,  an  owner  of  lands  as  aforesaid, 
has  filed  in  writing  in  this  office,  a  claim  for  damages  by  reason 
of  the  establishment  of  this  road,  in  the  sum  of  8.  .  .  . ;  [if  there 
are  other  claims,  here  state  them.]  Now,  therefore,  I,  the  said 
auditor,  do  appoint  T  S,  G  L  and  E  V  M,  disinterested  electors 
of  said  county,  to  view  the  ground  on  the  ....  day  of  . . . .,  18. ., 


THE   HIGnWAT   BOOK.  209 

and  report  upon  the  amount  of  damages  sustained  by  the  said 
claimants,  within  thirty  days  from  this  date. 

C C . . . . ,  Auditor. 

Auditor's  Office,  ....   County^  Iowa,  June ,  18. . 

JUNE    SESSION    OF    BOARD     OF     SUPERVISORS 4:TH     DAT. 

Heport  of  the  Committee  on  Highways: 

In  the  matter  of  the  petition   of and  others,  for  the 

location  of  a  highway  in     ...  township,  in  said  county: 

The  appraisers   appointed   herein   by  the  auditor  to   view  the 

ground,  and   report  on  the  damage   sustained   by    ,  by 

reason  of  the  establishment  of  said  proposed  highway,  having 
appraised  his  damages  and  reported,  and  filed  the  same,  in  which 
said  damages  are  appraised  at  $....,  we  recommend  the  estab- 
lishment of  said  highway  as  reported  by  the  commissioner 
appointed  herein,  on  the  payment  of  said  damages  and  costs,  and 
expenses  therein. 

Whereupon,  the  said  board  having  heard  testimony  and  exam- 
ined the  petition  for  and  the  remonstrance  against  said  road,  on 
motion  said  report  was  adopted,  and  said  road  ordered  to  be 
established  as  reported  by  said  commissioner,  and  platted  by  him 
on  the  payment  of  said  damages,  and  the  costs  and  expenses 
herein  incurred  within  thirty  days  from  this  date. 

x\nd  it  was  further  ordered,  that  this  case  be  continued  until 
the  next  September  session,  of  this  board  for  final  action. 

SESSION  OF  THE  BOARD    OF    SUPERVISORS,  SEPT.    .  .,  18.  .,  6tH  DAY. 

In   the   matter  of  the    petition  of ,  and  others,  for  the 

location  of  a  highway  in  ....  township,  in  said  county: 
It  appearing  to  the  board  that  the  conditions  for  the  establish- 
ment of  this  highway,  made  ai  the  last  session  of  the  board,  have 
been  complied  with,  and  that  all  damages  and  costs,  and  expenses 
incurred  herein,  have  been  fully  paid,  it  is  ordered  by  the 
board,  that  said  highway,  as  located  by  the  commissioner  appointed 
herein,  be  unconditionally  established,  and  that  the  report  of  said 
commissioner  with  his  plat,  and  field-notes  of  the  survey  and 
location  of  said  highway  be  entered  on  the  records  by  the  Jiudi- 
tor;  which  is  done  accordingly  to-wit: 

County.  [  ' 
2\j  . .  . .,  (ixuHtor  (if  said  county: 

The  undersigned  having  been  appointed  a  commissioner  to 
view,  and  if  thought  necessary,  locate  a  certain  highway  in  said 
county,  petitioned  for  by  [name  of  petitioner]  and  others,  and 
known  as  [name  the  road],  would  report  as  follows:  That,  having 
been  duly  sworn,  he  found  upon  examination  that  it  was  expedient, 

14 


State  of  Iowa, 

'      '  ss. 


210 


THE   RECORDS. 


and  necessary,  for  the   accommodation   of  the  public,  that   the 
highway  slioulil  be  located  as  petitioned  for. 

Therefore,  with  the  assistance  of  [name  the  surveyor]  as  sur- 
veyor, [name  the  chainmen]  as  chainmen,  [name  the  axmen]  as 
axmen,  who  were  all  duly  sworn,  your  coniuiissioner  proceeded 
on  the  day  set  therefor,  to-wit:  the  ....  day  of  .  .  . . ,  A.  D.  18 . . , 
to  lay  out  and  locate  said  hiijhway,  and  to  disting'uish  the  same 
by  the  proper  marks,  mounds  and  stakes,  in  the  u)anner  pre- 
scribed by  law,  and  in  accordance  with  the  field-notes  and  plat  of 
survey  of  the  highway,  which  are  hereto  annexed,  and  which  are 
made  part  of  this  report. 

Your  commissioner  is  of  the  opinion  that  the  highway  will  be 
of  great  convenience  and  utility  to  the  public,  and  would  hereby 
recommend  its  establishment. 

All  of  which  is  respectfully  submitted. 

F . . . .  M . . . .  B . . . . ,  Commissioner. 

PLAT    OF    THE    PEOPOSED    KOAD. 

Township  83  N.,  Range  3  TF.,  hth  P.  M. 


Section  2. 

Section  1. 
Station  1. 

\ 

>^^ 

\ 

PIELD-KOTES   OF   PEOPOSED     EOAD. 


o 

< 

</> 

D 
O 

u 

DISTANCE. 

REMARKS. 

1 
2 

West.. 

80  chains 

15  chains,  3  Hnks  . 

At  qr.  cor.  in  E.  side,  Sec.  1,  T.  83,  R.  3,  W.  5th  P.  M. 
At  qr.  cor.  in  W.  side,  Sec.  1,  T.  83,  R.  3.  W.  5th  P.  M. 
At  center  of  Anamosa  and  Rome  roads 

F  .    .    M  .    .    B  .    .  ,   Commissioner  and  County  Surveyor. 


THE    HIGHWAY   BOOK.  211 

Final  action  by  the  Auditor. — If  no  objections,  or  claims 

for  damages,  on  account  of  the  proposed  highway  are  made  after 
the  service  of  the  notice  required  by  the  statute,  and  on  or  before 
noon  of  the  day  fixed  for  filing  the  same,  and  the  auditor  is  satis- 
fied that  the  provisions  of  the  statute  have  been  complied  with, 
he  is  required  to  proceed  with  the  matter,  and  establish  such 
highway  himself,  as  recommended  by  the  commissioner,  on  the 
payment  of  the  expenses  of  the  proceedings  within  ten  days. 

If  such  costs  are  not  paid  within  ten  days,  the  auditor  is  required 
to  report  his  action  in  the  premises  to  the  board  of  supervisors, 
at  their  next  session,  who  may  affirm  the  action  of  the  auditor,  or 
establish  such  highway  at  the  expense  of  the  county. 

If  the  auditor  establishes  the  highway,  the  record  would,  of 
course,  be  the  same  as  above,  except  that  part  relating  to  the 
action  of  the  board;  instead  of  which  the  record  may  be  in  the 
following  form: 

RECORD  OF  ESTABLISHMENT  BY  AUDITOR. 

isTo.  iir. 

Auditor's  Office,  ....  County^  . . , . ,  18 . . 

In  the  matter  of  the  petition^  etc. 

Now  to-wit:  . . . . ,  18 . . ,  being  the  time  fixed  on  or  before  which 
any  objections  to,  or  claim  for  damages  in  consequence  of  the 
establishment  of  this  road  should  be  filed,  and  no  objections 
thereto,  nor  claim  for  damages  therein,  being  filed  in  this  oflfice; 
it  cohfies  on  for  a  hearing  before  the  auditor  of  said  county.  And 
it  appearing  to  said  auditor,  that  the  notice  required  by  the  stat- 
ute has  been  duly  served  on  the  parties  interested,  and  published 
as  required  by  law,  and  that  all  of  the  provisions  of  the  law  relat- 
ing to  the  establishment  of  the  highway  have  been  complied 
with,  said  highway  is  ordered  to  be  estal)lished,  on  the  payment 
of  the  costs  herein  incurred,  amounting  to  $....,  within  ten  days 
from  this  date,  [if  said  costs  should  be  paid  at  the  time,  the 
auditor  could  state  the  fact  thus:  and  said  costs  being  now  paid 
said  highway  is  unconditionally  established  as  located  by  the 
report  of  the  commissioner  herein  appointed,  and  the  plat  and 
field-notes  of  his  survey  thereof.] 

C . . . .  C . . . . ,  Auditor. 

To  which,  in  case  the  costs  should  be  paid  as  provided  by  law, 
there  should  be  annexed  a  record  of  the  report,  plat,  and  field- 
notes  of  the  commissioner  as  given  above. 


213  THE  RECORDS. 

FE^S  IX  LAYING  OUT  ROADS. 

For  laying  out  public  highways.— Section  3824.  The  following  fees  shall  be 
paid  persons  engaged  in  laying  out  and  changing  highways: 

Commissioners  for  each  day,  two  dollars; 

Surveyor  for  each  day,  four  dollars; 

Chain  carriers,  markers,  and  other  assistants,  for  each  day,  one  dollar  and  fifty  cents. 

If  the  highway  extends  into  more  than  one  county,  such  expenses  when  so 
adjudged  shall  be  paid  by  the  several  counties  in  proportion  to  the  length  of  time 
occupied  on  the  highway  in  each  county. 

The  road  record  and  form  book. — The  forms  above  fur- 
nished could  be  printed  in  a  proper  book  for  that  purpose,  with 
suitable  blanks,  and  thus  place  the  complete  records  in  each  case 
together,  and  secure  system  and  uniformity  in  the  records  of  road 
cases,  and  thereby  save  much  labor  and  time  on  the  part  of  the 
county  auditor. 

Sets  of  the  above  forms  could  be  repeated,  and  both  for  final 
action  by  the  board,  and  the  auditor;  and  if  either  acted,  the 
form  adapted  to  the  action  of  the  other,  could  remain  blank;  or 
the  sets  of  forms  for  the  diiferent  cases  could  be  placed  separate, 
in  different  parts  of  the  book.  This  plan  is  quite  common  in  the 
recorder's  oflfice  for  the  record  of  deeds,  that  are  uniform  in  their 
general  forms',  and  also  in  the  clerk's  office  for  the  entry  of  judg- 
ments and  decrees  that  may  be  made  uniform,  as  in  case  of  com- 
mon defaults  on  notes,  and  on  notes  with  foreclosure  of  mortgages 
given  to  secure  the  same. 

This  plan  would  tend  to  secure  accuracy  and  order  where  much 
informality,  and  want  of  accuracy  and  order  usually  prevails. 

III.     WARRANT  BOOK. 

What  it  should  contain. — The  warrant  book  required  to  be 
kept,  generally  consists,  so  far  as  I  have  observed,  of  a  book  in 
which  blank  county  warrants  are  printed  with  printed  blank 
"  stubs  "  for  each  warrant,  for  entering  in  the  order  of  their  issu- 
ance the  number  of  the  warrant  with  the  date,  amount,  and  name 
of  the  payee,  as  directed  and  required  by  law. 

IV.    RECORD  BOOK  OF  OFFICIAL  BONDS. 

What  it  should  contain. — In  this  book  should  be  recorded 
the  official  bonds  of  all  officers  whose  bonds  are  approved  by  the 
board.     Code,  Sec.  683. 


HIGHWAY   PLAT   BOOK — OFFICIAL   BOND.  213 

V.     HIGHWAY  PLAT  BOOK. 
Required  to  be  kept  by  auditor. — This  book  is  required 

to  be  kept  by  the  auditor,  and  on  which  he  is  required  to  plat  all 
the  hghways  of  the  county,  and  all  that  may  be  legally  estab- 
lished.    Code,  Sec.  967. 

'    ^  i 

VI.     OFFICIAL  BONDS. 

How  approved . — We  have  already  noticed  that  oflBcial  bonds 
of  county,  and  some  township  oflBcers,  should  be  approved  by  the 
board  of  supervisors.  This  should  be  done  by  an  action  of  the 
board  thereon.  But  in  addition  thereto  the  chairman  of  the  board 
should  indorse  upon  the  bonds,  his  certificate  of  said  approval  by 
the  board.  For  a  form  in  such  cases,  see  form  for  indorsement  on 
the  clerk's  bond,  No.  3. 


214  POWERS,    DUTIES,   ETC. 


CHAPTER  XXXI. 


POWERS,  DUTIES,  LIABILITIES,  RESPONSIBIL- 
ITY AND  COMPENSATION. 

I.     DECISIONS  RELATING  TO  THEIR  POWERS,  DUTIES 
AND  LIABILITIES. 

To  employ  an  attorney. — The  board  of  supervisors  has 
power  to  employ  an  attorney,  or  attorneys,  to  prosecute  or  defend 
in  a  criminal  case,  properly  belonging  to  the  duties  of  the  district 
attorney;  and  the  board  having  power  to  act  in  such  a  case,  may 
devolve  the  performance  of  the  duty  on  a  committee  of  its  own 
members,  to  carry  out  such  a  contract  of  employment.  32 
Iowa,  15. 

Erection  of  public  buildings. — They  may  order  the  erec- 
tion of  a  public  building  the  cost  of  which  does  not  exceed 
$5,000,  and  may  also  order  the  purchase  of  grounds  on  which  to 
erect  the  same,  the  cost  of  which  does  not  exceed  $2,000. 

The  cost  of  the  building  and  grounds  are  not  to  be  estimated 
together.     Code,  Sec.  303;  32  Iowa,  200. 

Contract  for  county. — A  resolution  of  the  board  of  super- 
visors offering  a  bounty  to  each  volunteer  enlisting  in  the  military 
service,  to  the  credit  of  the  couiaty,  "  under  the  present  call  or  to 
fill  any  call  that  might  thereafter  be  made,"  is  unlimited  as  to 
the  time  of  enlistment,  or  as  to  the  calls  under  which  made. 
The  fact  that  one-half  of  the  bounty  was  to  be  paid  at  a  fixed 
date,  would  not  aflfect  the  rule.  Nor  would  the  fact  that  no  dis- 
tinct quota  was  specifically  assigned  to  the  county,  affect  the 
right  of  the   claimant  to  recover,  if  each  township  had  assigned 


DECISIOXS    RELATING   TO    POWERS,    DUTIES,  ETC.  215 

to  it  the  number  of  men  necessary  to  be  furnished  by  it,  and  the 
enlistment  in  question    was    credited  to  a  particular  township. 
32  Iowa,  530. 
Equalization  of  assessments.— The  board  has  power  to 

equalize  assessments  of  townships,  cities  and  incorporated  towns 
of  their  county;  they  may  add  to,  or  deduct  from,  the  valuation 
of  any  township  such  percentage  as  may  be  necessary  to  equalize 
the  same,  and  its  discretionary  action  in  this  respect  cannot  be 
reviewed  on  certiorari.     30  Iowa,  531. 

3Jisdemeanor  in  office. — The  ordering  of  the  erection  of  a 
bridge  at  a  cost  of  more  than  $5,000,  without  first  submitting  a 
proposition  therefor  to  the  voters  of  the  county,  is  the  doing  of 
an  act  prohibited  by  statute,  and  renders  the  members  of  the 
board  voting  for  the  order  indictable  for  a  misdemeanor.  30 
Iowa,  238;  Code,  Sec.  303. 

Publication  of  laws   and  proceedings.— Where  laws 

have  once  been  published  ia  a  newspaper,  selected  therefor  by 
the  board,  according  to  law,  and  which  was  then  the  only  news- 
paper published  in  the  county,  the  board  have  not  the  power  at 
its  January  session  in  the  following  year,  to  order  their  publica- 
tion again  in  another  paper,  established  subsequently  to  the 
first. 

And  it  seems  that  if  no  paper  is  published  in  the  county,  at 
the  time  when  the  board  is  by  law  to  make  the  selection,  it  cannot 
subsequently  order  them  published  in  a  paj^er  subsequently  estab- 
lished. 

But  as  to  the  publication  of  the  proceedings  of  the  board,  their 
publication  may  be  ordered  at  any  session  of  the  board. 

But  the  proprietor  of  a  newspaper  has  no  such  private  or  per- 
sonal interest  in  the  publication  of  such  laws  and  proceedings  as 
that  he  can  in  his  own  name  maintain  an  action  to  compel  by 
mandamus,  the  board  to  order  such  publication  in  his  paper.  23 
Iowa,  199. 

To  determine  the  circulation— The  power  to  determine 

the  circulation  of  papers  in  each  case  is  conferred  upon  the  l)oard, 
and  in  doing  this,  they  are  not  confined  to  the  alfidavits  filed  by 
the  respective  proprietors  of  newspapers,  but  all  other  practicable 


216 


POWERS,   DUTIES,    ETC. 


sources  of  information  are  open  to  them.  Smith  v.  Yoran,  et  al., 
(Board  of  Sup.,)  Sept.  T.  Sup.  Ct.,  (not  yet  published.) 

Power  in  iTferenec  to  bri(l;!i;e.s. — The  board  is  invested 

with  power  to  erect  all  bridges  in  the  county,  which  may  be  neces- 
sary, and  which  the  public  convenience  may  require;  and  may 
levy  a  tax  for  that  purpose  not  exceeding  three  mills  on  the 
dollar.  The  statute  giving  cities  and  incorporated  towns  the 
control  of  bridges  within  the  city  or  town  does  not  oust  the  county 
of  the  right  to  erect  free  bridges  across  a  river  on  a  public  high- 
way within  the  limits  of  the  city  or  incorporated  town.  And  the 
appropriation  of  ^7,000  out  of  the  swamp  land  money  belonging 
to  the  county  to  aid  in  the  construction  of  a  bridge,  by  authority 
of  a  vote  of  the  electors  of  a  county  imposes  no  restriction  upon 
the  powers  of  the  board  of  supervisors  to  make  an  additional 
appropriation.     21  Iowa,  119. 

Lease  with  offer  to  sell :  what  is  not  acceptance  .— 

A  lease  of  a  certain  building  for  use  as  a  court  house,  entered 
into  between  the  board  of  supervisors  and  the  owners  of  said 
building,  contained  the  stipulation  that,  "  the  county  shall  have 
the  privilege  of  purchasing  the  property  hereby  leased,  at  any 
time  during  the  existence  of  the  lease  for  $12,000."  The  board 
afterward,  in  accordance  with  law,  ordered  the  question  of  the 
purchase  of  said  building  to  be  submitted  to  a  vote  of  the  people 
of  the  county,  which  was  accordingly  done,  and  their  vote  regu- 
larly given  in  the  aflSrmative,  and  was  so  declared  and  entered 
by  the  board.  In  an  action  afterward  brought  by  the  owners  of 
said  property,  to  compel  the  specific  performance  of  the  contract, 
which  it  was  claimed  had  been  made  complete  by  the  aforesaid 
action  of  the  board  and  the  people,  the  petition  averred  the  fore- 
going facts:     It  was  held: 

1.  That  the  facts  alleged  did  not  constitute  a  complete  con- 
tract of  sale  enforceable  in  a  court  of  equity. 

2.  That  the  effect  of  the  vote  of  the  people  was  merely  to 
authorize,  not  require,  the  board  to  make  the  purchase  at  the 
price  stipulated,  and  that  until  they  should  contract  by  accepting 
the  offer,  pursuant  to  the  authority  conferred  upon  them,  there 
was  no  consummation  of  the  same.     22  Iowa,  491. 


DECISIONS   RELATING   TO    POWERS,  DUTIES,  ETC.  217 

Fraud  in  the  submission  of  questions. — In  order  to 

avoid  on  the  ground  of  fraud  the  result  of  a  submission  to  the 
voters  of  the  county  a  question  involving  the  purchase  of  a  public 
building,  there  must  be  some  showing  of  artifice  to  conceal  mate- 
rial facts  peculiarly  within  the  knowledge  of  the  board  of  super- 
visors ordering  such  submission,  and  not  open  to,  or  attainable 
by  others.     22  Iowa,  492. 

Proposition  to  levy  a  tax. — A  submission  by  the  board  to 
the  voters  of  the  county  of  a  question  involving  the  expenditure 
of  money  in  the  purchase  of  a  public  building  is  of  no  eflfect  unless 
accompanied  by  a  proposition  to  levy  a  tax  for  the  payment 
thereof,  and  the  adoption  of  the  same,  together  with  the  proposi- 
tion of  expenditure.     12  Iowa,  155. 

Power  to  grade  roads. — The  board  has  power  to  grade 
and  improve  the  public  roads,  and  to  contract  therefor.     32  Iowa, 

181. 

Appeal. — An  appeal  lies  from  an  order  of  the  board  refusing 
to  allow  a  claim,  or  establishing  a  private  road,  and  the  taking  of 
land  for  a  private  road  is  unconstitutional.  25  Iowa,  540;  15 
Iowa,  256;  19  Iowa,  29. 

Road  record. — The  establishment  of  a  road  will  not  be  held 
invalid  on  the  ground  that  the  petition  therefor  does  not  suffi- 
ciently state  the  commencement  and  terminus  of  the  road  when 
these  are  made  sufficiently  certain  by  the  record  plat  and  survey; 
nor  because  it  asks  for  "  the  appointment  of  a  commissioner  to 
open  a  road,"  instead  of,  "  the  establishment  of  a  road."  20  Iowa, 
223;  24  Iowa,  362;  19  Iowa,  124. 

Counties  not  liable  for  their  officers.— Counties  and  other 

quasi  corporations  are  generally  not  liable  to  private  actions  for 
the  neglect  of  their  officers  in  respect  to  highways,  unless  the 
statute  has  by  express  provision  created  the  liability;  nor  for  an 
injury  caused  by  a  defective  culvert  or  small  bridge  which  it  was 
the  duty  of  the  officers  of  the  road  district  to  keep  in  repair.  26 
Iowa,  264, 

Wlien  liable  for  unsafe  condition  of  bridges.— In  anal- 
ogy to  the  liability  of  municipal  corporations  with  respect  to  their 


218  POWERS,   DUTIES,   ETC. 

streets,  it  has  been  held  that  counties  Avere  liable  for  the  unsafe 
condition  of  county  bridges  proper,  that  is,  bridges  built  by  the 
county  authorities  in  the  exercise  of  their  statutory  power  and 
duty,  and  over  which  they  had  exercised  jurisdiction.  26  Iowa, 
264;  16  Iowa,  339. 

Duty  of  repairing  roads  not  imposed.— The  duty  of 

repairing  roads  is  not  imposed  by  statute  upon  the  county  as  a 
corporation,  but  upon  the  respective  road  districts,  and  for  the 
default  of  the  road  districts  or  its  officers,  the  county  is  not  liable. 
26  Iowa,  264. 

The  record  as  evidence. — Where  a  road  was  established 
upon  condition  that  the  damages  awarded  should  be  paid  within 
a  certain  time,  and  the  record  showed  they  were  paid,  but  not 
the  time  when,  they  will  be  presumed  to  have  been  paid  within 
the  time  prescribed.  And  it  will  be  presumed  that  the  notices 
required  by  law  were  duly  posted.  25  Iowa,  232;  24  Iowa,  362; 
19  Iowa,  133. 

Field-notes  and  plat. — The  directions  of  the  statute  relating 
to  mile-posts,  and  other  monuments,  and  the  making  of  field- 
notes  and  plats,  are  directory;  and  a  failure  to  comply  therewith 
by  the  surveyor,  will  not  render  the  proceedings  void.  24  Iowa, 
362;  9  Iowa,  583. 

Certiorari. — Proceedings  in  the  establishment  of  a  road  will 
not  be  annulled  on  certiorari,  unless  it  is  shown  that  the  board 
has  exceeded  its  jurisdiction,  or  is  acting  illegally.     7  Iowa,  248. 

Highways  in  cities  and  towns-— Special  acts  conferring 
upon  cities  and  incorporated  towns  the  power  to  regulate  and 
improve  the  lanes  and  alleys,  and  regulate  the  width  of  side- 
walks; and  that  the  lanes  and  alleys  and  the  roads  leading  from 
the  city  or  town  for  one  mile,  shall  constitute  one  road  district, 
do  not  affect  the  power  given  the  board  to  establish  roads 
throughout  the  county.  And  the  establishment  of  a  road  more 
than  66  feet  wide  is  irregular,  but  not  void.  It  can  be  corrected 
on  appeal,  but  cannot  be  attacked  collatterally.     20  Iowa,  248. 

Cannot  establish  a  road  beyond  the  terminus.— The 

commissioners  have  no  power  to  lay  out  a  highway  beyond  the 


EESPONSIBILITY    OF    OFFICE.  219 

terminus  named  in  the  notice  and  petition,  and  a  report  estab- 
lishing such  an  extension  is  null  and  void.     18  Iowa,  535. 

The  appraisers  cannot  allow  for  benefits.— In  the 

assessment  of  damages  in  the  location  of  a  road,  the  appraisers 
cannot  take  into  account  any  advantage  or  benefit  that  may  result 
to  the  owner  by  reason  of  the  establishment  of  the  road,  as  that  it 
would  tend  to  drain  and  improve  the  land,     32  Iowa,  254. 

The  Session  Laws  of  1874,  provide  additional  powers  and 
duties  for  the  board  of  supervisors,  as  follows: 

In  each  county  where  coal  and  other  minerals  are  mined  they 
may  appoint  a  person  practically  acquainted  with  mining,  as 
inspector  of  mines  whose  duty  is  prescribed  by  the  statute.  Sess. 
Laws,  1874,  Chap,  31. 

They  may' make  an  appropriation  to  aid  in  the  support  of  the 
Teachers  Normal  Institute.  Session  Laws,  1874,  Chap.  57.  And 
they  may  remit  the  penalty  and  interest  on  the  payment  of  taxes 
that  have  remained  due  and  uncollected  for  four  years.  Sess. 
Laws,  1874,  Chap.  29. 

IL     RESPONSIBILITY  OF  THE  OFFICE. 

Special  duty. — The  office  of  supervisors  is  a  highly  honor- 
able and  responsible  one.  They  are  the  legally  constituted 
guardians  of  the  rights  and  interests  of  the  county,  and  it  is  made 
their  special  duty  to  inquire  into,  and  investigate  the  accounts  of 
the  county  officers  and  particularly  those  having  charge  of  the 
finances  of  the  county. 

In  the  discharge  of  this  important  duty  they  should  exercise  at 
least  a  reasonable  diligence,  and  require  the  accounts  of  these 
officers  to  be  rendered  to  them  in  a  clear  and  business-like-way, 
and  to  examine  and  scrutinize  these  accounts  closely. 

Owing  to  the  neglect  of  this  duty,  in  some  cases,  large  losses 
have  resulted  to  counties  in  this  State. 

The  law  contemplates,  and  the  people  expect,  and  demand,  a 
faithful  discharge  of  this  duty  on  the  part  of  supervisors,  and  the 
neglect  of  the  same,  tends  to  general  looseness,  and  want  of  order 
and  system  on  the  part  of  the  officer. 

It  frequently  occurs  that  petitions  are  presented  lo  the  board, 


220  POWERS,   DUTIES,   ETC. 

and  claims  are  made,  against  the  county  in  relation  to  which  the 
board  has  no  jurisdiction.  Of  this  class  are  petitions  to  reduce 
the  assessment  of  individuals.  The  Code  provides  that  parties 
aggrieved  by  assessments,  may  apply  to  the  township  board  of 
equalization,  which  is  composed  of  the  township  trrustees,  and 
meet  for  this  purpose  on  the  first  Monday  of  April,  in  each  year. 
The  board  of  supervisors  has  no  power  to  act  in  such  cases, 
and  the  practice  leads  to  trouble  and  vexation  on  the  part  of  the 
board.  They  might  be  thus  unprofitably  occupied  during  the 
whole  year. 

III.    COMPENSATION. 

Provisions  of  the  statute. — The  statute  provides  for  the 
compensation  of  supervisors  as  follows: 

Sec.  3791.  The  members  of  the  board  of  supervisors  shall  each  receive  four 
dollars  for  each  day  actually  in  session,  and  two  dollars  and  fifty  cents  per  day, 
exclusive  of  mileage,  when  not  in  session  but  employed  on  committee  service,  and 
six  cents  per  mile  for  every  mile  traveled  in  going  to  and  from  said  session  of  the 
board  :  provided,  that  in  counties  having  a  population  as  shown  by  the  last  preceding 
census  of  less  then  ten  thousand  they  shall  not  receive  compensation  for  more  than 
twenty  days  in  one  year ;  and  in  counties  having  a  population  of  more  than  ten 
thousand,  but  less  than  thirty  thousand,  for  more  than  thirty  days  in  the  year ;  and  in 
counties  having  a  population  of  thirty  thousand  or  over,  not  more  than  forty  days  in 
one  year. 


auditor's  duty.  231 


CHAPTER   XXXII. 


THE  AUDITOR. 


I.    HIS  DUTY. 

Closely  related  to  the  duties  of  the  board  of  supervisors  are 
the  duties  of  the  auditor. 

The  general  provisions  of  the  Code  in  reference  to  those  duties 
are  as  follows: 

Duties  of.— Section  320.     The  county  auditor  shall : 

1.  Record  all  the  proceedings  of  the  board  in  proper  books  provided  for  that 
purpose ; 

2.  Make  full  entries  of  all  their  resolutions  and  decisions  on  all  questions  con- 
cerning the  raising  of  money,  and  for  the  allowance  of  money  from  the  county 
treasury ; 

3.  Record  the  vote  of  each  supervisor  on  any  question  submitted  to  the  board,  if 
required  by  any  member  present ; 

4.  Sign  all  orders  issued  by  the  board  for  the  payment  of  money,  and  record  in 
a  book  provided  for  the  purpose,  the  reports  of  the  county  treasurer  of  the  receipts 
and  disbursements  of  the  county; 

5.  Preser\'e  and  file  all  accounts  acted  upon  by  the  board,  with  their  action 
thereon,  and  perform  such  special  duties  as  are  or  may  be  required  of  him  by  law ; 

6.  Designate  upon  every  account  on  which  any  sum  shall  be  allowed  by  the  board, 
the  amount  so  allowed,  and  the  charges  for  which  the  same  was  allowed; 

7.  Deliver  to  any  person  who  may  demand  it,  a  certified  copy  of  any  record  or 
account  in  his  office  on  payment  of  his  legal  fees  therefor. 

When  to  sign  warrants. — Sec.  321.  The  auditor  shall  not  sign  or  issue  any 
county  warrant  except  upon  the  recorded  vote  or  resolution  of  the  board  of  super- 
visors authorizing  the  same,  except  for  jury  fees,  and  every  such  warrant  shall  be 
numbered,  and  the  date,  amount,  and  number  of  the  same,  and  the  name  of  the 
person  to  whom  issued,  shall  be  entered  in  a  book  to  be  kept  by  him  in  his  office  for 
the  puri)ose. 

School  fund. — Sec.  322.  Whenever  the  auditor  of  any  county  shall  receive  from 
the  state  auditor,  notice  of  the  apportionment  of  school  moneys  to  be  distributed  in 
the  county,  he  shall  file  the  same  in  his  office  and  transmit  a  certified  copy  thereof  to 
the  county  treasurer,  and  he  shall  also  lay  a  certified  copy  thereof  before  the  board 
at  its  next  regular  meeting. 


2 -^2  THE    AUDITOR. 

Court  house. — Sec.  32n.  The  county  auditor  shall  have  the  general  custody  and 
control  of  the  court  house  in  each  county  respectively,  subject  to  the  direction  of  the 
board  of  supervisors. 

Beport  to  secretary  of  state. — Sec.  324.  The  county  auditor  shall  report  to  the 
secretary  of  state  the  name,  office,  and  term  of  office  of  every  county  officer  elected 
or  appointed,  within  fen  days  after  their  election  and  qualification,  and  the  secretary 
of  state  shall  record  the  same  in  a  book  to  be  kept  for  that  purpose  in  his  office. 

Who  eligible. — Sec.  325.  The  clerk  of  the  district  court  and  county  recorder 
shall  each  be  eligible  to  the  office  of  county  auditor,  and  may  discharge  the  duties  of 
both  offices. 

Cannot  be  treasurer. — Sec.  326.  The  offices  of  county  auditor  and  county 
treasurer  shall  not  be  united  in  the  same  person.  The  auditor  and  his  deputy  are 
prohibited  from  acting  as  attorney,  either  directly  or  indirectly,  in  any  matter  pending 
before  the  board  of  supervisors. 

Oath  of  any  receiver  of  public  money  before  credit  given. — Sec.  73.  When  a 
county  treasurer  or  other  receiver  of  public  money,  seeks  to  obtain  credit  on  the 
books  of  the  auditor's  office  for  payment  made  to  the  treasurer,  before  giving  such 
credit  the  auditor  shall  require  him  to  take  and  subscribe  an  oath  that  he  has  not 
used,  loaned  or  appropriated  any  of  the  public  money  for  his  private  benefit,  nor  for 
the  benefit  of  any  other  person. 

Bequisition  to  officer  to  account. — Sec.  74.  In  those  cases  where  the  auditor  is 
authorized  to  call  upon  persons  or  officers  for  information,  or  statements,  or  accounts, 
he  may  issue  his  requisition  therefor  in  writing  to  the  person  or  officer  called  upon, 
allowing  reasonable  time,  which  having  been  served  as  a  notice  in  a  civil  action'  by 
the  sheriff  of  the  county  in  which  the  person  or  officer  called  upon  resides,  and 
returned  to  the  auditor  with  the  service  indorsed  thereon,  shall  be  evidence  of  the 
making  of  the  requisition  therein  expressed. 

II.     SUMMARY  OF  OTHER  DUTIES. 
To  deliver  the  session  laws.— It  is  his  duty  to  deliver  to 

each  county  officer  and  the  mayor  of  each  incorporated  town  and 
city,  and  to  each  justice,  constable,  trustee,  member  of  a  town 
and  city  council,  township  clerk  and  assessor  a  copy  of  the  gen- 
eral laws  of  each  session  of  the  legislature  of  the  State  furn- 
nished  him  by  the  Secretary  of  State,  and  to  sell  and  dispose  of 
any  of  the  balance  of  said  laws  that  may  be  furnished  him,  and 
be  required  by  others;  to  report  annually  on  the  fifteenth  day  of 
November,  of  copies  of  said  laws  sold  and  the  number  on  hand, 
and  the  amount  paid  into  the  State  or  county  treasury  on  account 
of  such  sales,  and  charge  such  State  or  county  treasurer  with  the 
amount;  and  he  is  required  to  deliver  to  his  successor  in  office  the 
copies  remaining  on  hand.  And  he  is  further  to  distribute  the 
Code  to  certain  officers.  Code,  Sees.  40,  41,  42;  Sess.  Laws  1874, 
Chap.  15. 


SUMMARY    OF   DUTIES.  383 

Census. — He  is  required  to  forward  to  the  Secretary  of  State 
on  or  before  the  first  day  of  September  on  the  year  of  taking  of 
the  census,  an  abstract  of  the  census  returns,  and  upon  the  failure 
of  the  township  assessor  to  take  the  census,  he  is  required  to 
appoint  some  suitable  person  to  take  the  same.  Code,  Sees, 
114,  117. 

To  provide  for  grand  and  trial  jurors  .—He  is  required 

to  apportion  the  number  of  jurors  to  be  selected  in  each  election 
precinct  as  near  as  practicable  in  proportion  to  the  number  of 
votes  polled  therein  at  the  last  general  election,  and  deliver  a 
statement  thereof  to  the  sheriff  and  at  least  twenty  days  prior  to 
the  first  day  of  any  term  of  court  at  which  a  jury  is  to  be  selected, 
the  auditor  or  his  deputy  must  write  out  the  names  on  the  lists  of 
grand  and  trial  jurors,  which  have  not  been  previously  drawn  as 
jurors,  during  the  year,  on  separate  ballots,  and  the  clerk  of  the 
District  Court  or  his  deputy,  and  the  sheriff  having  compared  said 
ballots  with  the  list  and  corrected  the .  same  if  necessary,  shall 
place  the  same  in  a  box  to  be  provided  for  that  purpose.  Code, 
Sees.  336,  240. 

Special  meeting  of  supervisors  .—When  a  special  meet- 
ing of  the  board  of  supervisors  is  required  and  requested  by  a 
majority  of  the  board,  in  writing  addressed  to  the  auditor,  it  is  his 
duty  to  fix  a  day  for  such  meeting  not  later  than  ten  days  from 
the  filing  of  the  petition  with  him,  and  he  is  required  to  immedi- 
ately give  notice  in  writing  to  each  of  the  supervisors  personally, 
or  by  leaving  a  copy  thereof  at  his  residence  at  least  six  days 
before  the  time  fixed  for  said  meeting. 

The  notice  must  state  the  time  and  place  of  meeting,  and  the 
object  of  it  as  stated  in  the  petition.     Code,  Sec.  301. 

To  make  a  duplicJlte  tax  list.— In  counties  where  town- 
ship collectors  are  elected,  he  is  required  to  make  out  duplicate 
tax  lists  for  each  township,  and  deliver  the  same  with  the  original 
to  the  county  treasurer.     Code,  Sec.  402. 

To  cause  plats  of  land  to  be  made  in  certain  cases.— 

In  case  the  original  owner  or  proprietor  of  any  sub-division  of 
land,  has  sold  any  part  thereof  and  has  failed,  or  neglected  to  file 
a  plat,  as  provided  by  law,  the  county  auditor  is  required  to  notify 


224  THE    AUDITOR. 

such  owner,  or  proprietor,  and  if  he  fail  to  file  said  plat  for  thirty 
days,  the  auditor  is  required  to  cause  a  plat  thereof  to  be  made 
and  filed  for  record,  which  shall  have  the  same  effect  as  if  made 
by  the  proprietor  or  proprietors  thereof.     Code,  Sec.  568. 

And  whenever  any  congressional  sub-division  of  lands  of  forty 
acres  or  less,  is  owned  by  two  or  more  persons  in  severalty,  and 
the  description  of  one  or  more  parcels  thereof  are  in  the  opinion 
of  the  auditor  not  sufficiently  certain  and  accurate  for  the  purpose 
of  assessment  and  taxation,  he  may  cause  the  same  to  be  platted 
and  said  plat  recorded,  as  required  in  relation  to  plats  of  towns 
and  cities.     Code,  Sec.  569. 

To  furnish  two  poll-books. — He  is  required  to  prepare  and 
furnish  to  each  precinct  two  poll-books,  having  each  of  them  a 
sufficient  column  for  the  number  of  voters,  and  sufficient  blank 
leaves  to  contain  the  entries  of  the  oaths,  certificates  and  returns 
of  elections,  and  also  all  books,  blanks  and  material  necessary  to 
carry  out  the  provisions  of  the  law  in  reference  to  registration 
of  voters.  Code,  Sec.  615.  And  he  is  required  to  send  a  mes- 
senger to  the  percincts  where  the  returns  of  elections  have  not 
been  made  on  the  fourth  day  after  the   election.     Code,  Sec.  634. 

In  case  of  a  tie  vote. — In  case  of  a  tie  vote  between  two  or 
more  persons,  it  is  the  duty  of  the  auditor  to  notify  said  persons 
to  appear  at  his  office  on  a  day  named  in  the  notice,  and  within 
twenty  days  from  the  election,  and  determine  by  lot  which  of  them 
is  to  be  declared  elected.  Code,  Sec.  643.  And  it  is  the  further 
duty  of  the  auditor  in  such  cases  to  notify  the  board  of  canvass- 
ers, or  in  case  of  their  absence  or  inability  to  act,  the  recorder 
and  sheriff  of  such  lot,  and  of  the  day  fixed  therefor.  Code, 
Sec.  644. 

To  transmit  abstract  of  votes  .—He  is  required  to  seal 
up,  direct  and  transmit  the  abstract  of  votes  cast  in  the  county 
for  senator  and  representative,  where  the  district  is  composed  of 
more  than  one  county,  duly  certified  by  the  county  canvassers  to 
the  secretary  of  State  and  to  the  auditor  of  each  other  county  in 
the  district,  who  should  file  the  same  in  his  office.  Code,  Sec. 
546. 

To  file  and  record  oflScial  bonds.— He  is  required  to  file 


SUMMARY    OF    DUTIES.  325 

and  record  in  a  book  to  be  kept  by  him  for  that  purpose  in  his 
office,  and  to  be  known  as  the  "  record  book  of  official  bonds," 
the  official  bonds  of  all  county  officers,  including  justices  of  the 
peace  and  constables,  and  keep  an  index  of  said  book,  in  which, 
under  the  title  of  each  office  he  shall  enter  the  names  of  each 
principal  and  his  sureties,  and  the  date  of  the  filing  of  the  bond. 
Code,  Sec.  683. 

To  be  clerk  of  the  court  in  contested  elections . — The 

auditor  shall  be  clerk  of  the  court  on  the  trial  of  contested  elec- 
tions ;  and  he  is  required  to  keep  the  papers  and  records  of  the 
proceedings  in  the  election  book  in  a  manner  similar  to  the  record 
of  proceedings  in  the  District  Court,  except  when  the  auditor  is 
a  party,  in  which  case  the  board  should  appoint  a  suitable  person 
as  clerk,  whose  appointment  should  be  recorded. 

And  he  may  issue  subpoenas  for  witnesses  in  such  cases,  at  any 
time  after  notice  of  trial  is  served.     Code,  Sees.  396  and  704. 

In  cases  of  removal  or  suspension  from  office.— In 

case  of  a  trial  and  judgment  of  removal  or  suspension  from  office 
of  any  county  or  township  officer,  a  copy  thereof  should  be  certi- 
fied to  the  county  auditor,  and  he  should  cause  it  to  be  entered 
in  the  election  book. 

If  the  proceedings  relate  to  a  justice  of  the  peace,  and  he  is 
removed  from  office,  the  auditor  should  notify  the  proper  town- 
ship trustees  or  clerk  of  the  removal.     Code,  Sees.  754  and  779. 

He  may  appoint  a  deputy. — It  will  be  seen  by  reference 
to  the  statute  relating  to  deputies  in  the  first  chapter  of  this  vol- 
ume, that  the  auditor  may  appoint  a  deputy,  for  whose  acts  he  is 
responsible.  But  in  all  cases  the  appointment  of  a  deputy  must 
receive  the  approval  of  the  board  of  supervisors.  For  the  proper 
forms  and  requirements  for  this  purpose,  reference  may  be  had 
to  those  furnished  for  the  clerk  in  such  cases. 

To  notify  the  townsliip  clerk  of  certain  vacancies.— 

Whenever  a  vacancy  occurs  in  the  office  of  a  justice  of  the  peace, 
or  constable,  more  than  thirty  days  prior  to  any  general  election, 
the  auditor  should  immediately  notify  the  clerk  of  the  township 
in  which  the  vacancy  exists  thereof;  and  the  auditor  may  approve 
the  bond  of  a  justice  of  the  peace  or  constable,  appointed  by  the 
15 


226  THE   AUDITOR. 

township  trustees  of  any  township  to  fill  a  vacancy,  on  the  recom- 
mendation of  the  sufficiency  of  the  sureties  upon  such  bond, 
signed  by  any  member  of  the  board  of  supervisors.  Code,  Sees. 
794  and  795. 

III.     HIS  DUTY  RELATING  TO  REVENUE. 
To  make  out  and  transmit  abstracts. — The  auditor  is 

required,  on  or  before  the  third  Monday  of  .Fune  in  each  year,  to 
make  out  and  transmit  to  the  auditor  of  State  an  abstract  of  the 
real  and  personal  property  in  his  county,  in  which  he  shall  set 
forth: 

1.  The  number  of  acres  of  land  in  his  county,  and  the  aggre- 
gate value  of  the  same,  exclusive  of  town  lots,  returned  as  cor- 
rected by  the  board  of  equalization. 

2.  The  aggregate  value  of  real  property  in  each  town  in  the 
county  returned  by  the  assessor,  as  corrected  by  the  county  board 
of  equalization. 

3.  The  aggregate  value  of  personal   property  in  his  county. 

4.  An  abstract  of  the  aggregate  value  and  number  of  cattle,  the 
aggregate  value  and  number  of  horses,  the  aggregate  value  and 
number  of  mules,  the  aggregate  value  and  number  of  swine  over 
six  months  old,  as  the  same  are  returned  by  the  assessors  of  his 
county.     Code,  Sec.  833. 

To  make  assessment  conform  to  requirements  of  the 
State  board  of  equalization  .—It  is  the  duty  of  the  auditor, 

on  the  receipt  of  the  statement  from  the  State  board  of  equaliza- 
tion, to  add  to,  or  deduct  from,  the  valuation  of  each  parcel  of 
real  estate  in  his  county,  the  percentage  required  by  the  State 
board,  rejecting  all  fractions  of  fifty  cents  or  less,  in  the  result, 
and  counting  all  over  fifty  cents  as  one  dollar;  and  before  the 
first  Monday  of  November,  in  each  year,  transcribe  the  assess- 
ments of  the  several  townships  into  a  book  to  be  provided  at  tha 
expense  of  the  county,  properly  ruled,  and  headed  with  distinct 
columns,  in  which  shall  be  entered  the  names  of  the  tax  payers, 
descriptions  of  the  lands,  number  of  acres  and  values,  value  of 
personal  property,  and  each  description  of  tax,  with  a  column  for 
polls,  and  one  for  payments.     Code,  Sec.  837. 


DUTY    RELATING    TO    REVENUE.  227 

The  consolidated  tax. — All  taxes  which  are  uniform  through- 
out any  civil  township  or  independent  school  district  shall  be 
formed  into  a  single  tax,  and  entered  upon  the  tax  list  in  a  single 
column,  and  denominated  a  consolidated  tax,  and  each  tax  receipt 
shall  show  the  percentage  levied  for  each  separate  fund.  Code, 
Sec.  838. 

His  duty  relating  to  the  tax  book.— The  board  of  super- 
visors are  required  at  their  meeting  in  September  in  each  year, 
to  levy  the  requisite  tax  for  the  current  year,  and  record  the  same 
in  a  proper  book;  and  it  is  the  duty  of  the  auditor,  as  soon  as 
practicable  thereafter,  to  complete  the  list,  by  carrying  out  in  a 
column  by  itself,  the  consolidated  tax,  highway  tax,  polls,  and 
irregular  tax,  if  any  be  levied,  and  the  total  taxes,  and  after  add- 
ing up  each  column  of  said  taxes,  he  shall  in  his  abstract,  at  the 
end  of  each  township,  incorporated  town  or  city  list,  apportion 
the  consolidated  tax  among  the  respective  funds  to  which  it 
belongs,  according  to  the  number  of  mills  levied  for  each  of  said 
funds,  showing  a  summary  of  the  total  amount  of  each  distinct 
tax.     Code,  Sec.  839. 

To  correct  errors. — He  ma,j  correct  any  clerical  or  other 
error  in  the  assessment,  or  tax  book,  and  when  such  correction 
affecting  the  amount  of  tax  is  made  after  the  books  have  passed 
into  the  hands  of  the  treasurer,  he  shall  charge  the  treasurer  with 
all  sums  added  to  the  several  taxes,  and  credit  him  with  any 
deductions  therefrom,  and  report  the  same  to  the  supervisors. 
Code,  Sec.  841, 

To  designate  on  the  books  land  sold.— Before  the  tax 

books  are  placed  in  the  hands  of  the  treasurer  for  collection  of 
the  taxes  thereon,  it  is  the  duty  of  the  auditor  to  designate 
thereon  each  piece  or  parcel  of  real  estate  previously  sold  for 
taxes  and  not  redeemed,  by  writing  in  a  plain  manner  opposite  to 
each  piece  the  word  "  sold."     Code,  Sec.  842. 

What  the  tax  books  should  show.— He  is  required  to  make 
an  entry  upon  the  tax  list,  showing  what  it  is,  and  for  what 
county  and  year,  and  deliver  it  to  the  county  treasurer  on  or 
before  the  first  day  of  November,  taking  his  receipt  therefor. 
Code,  Sec.  843. 


228  THE    AUDITOR. 

To  certify  statement  to  the  Auditor  of  State.— At  the 

same  time  he  is  required  to  furnish  the  Auditor  of  State  a  certified 
statement,  showing  the  aggregate  valuation  of  lands,  town  prop- 
erty, and  personal  property  in  the  county,  each  by  itself,  and 
also  the  aggregate  amount  of  each  separate  tax  as  shown  by  said 
tax  book.     Code,  Sec.  844. 

To  keep  accounts  with  the  treasurer. — The  auditor  is 
required  to  keep  full  and  complete  accounts  with  the  county 
treasurer,  and  with  each  separate  fund  or  tax  by  itself,  in  each  of 
which  accounts  he  shall  charge  him  with  the  amounts  in  his  hands 
at  the  opening  of  such  accounts,  whether  it  be  delinquent  taxes, 
notes,  cash,  or  other  assets  belonging  to  such  funds,  the  amount  of 
each  tax  for  each  year  when  the  tax  book  is  received  by  him,  and 
all  additions  to  each  tax,  or  fund,  whether  by  additional  assess- 
ments, interest,  or  delinquent  taxes,  the  amounts  received  for 
peddlers'  licenses,  and  other  items,  and  shall  credit  the  treasurer 
on  proper  vouchers,  for  money  disbursed,  for  double  and  errone- 
ous assessments,  including  all  improper  and  illegal  assessments, 
a  correction  or  remission  of  which  causes  a  diminution  of  the  tax, 
and  for  unavailable  taxes,  or  such  as  have  been  properly  and 
legally  assessed,  but  which  there  is  no  prospect  of  collecting. 
Code,  Sec.  8G9. 

The  manner  of  keeping  accounts  .—The  manner  and 
form  of  keeping  these  accounts  may  be  the  same  as  suggested 
for  the  county  treasurer,  in  treating  of  that  oflBcer.  It  is  evident 
that  a  cash  book  and  a  ledger  are  all  the  books  required  for  this 
purpose,  and  the  accounts  will  be  but  a  duplicate  of  the  treasurer's 
accounts.  The  theory  of  the  law  is,  that  the  auditor  at  all  times 
has  the  axnounts  received  by  the  treasurer  from  all  sources;  and 
at  stated,  and  short  intervals,  when  he  examines  his  vouchers  for 
money  paid  out,  he  has  an  accurate  account  of  the  condition  of 
the  various  funds  in  the  hands  of  the  treasurer,  and  of  the  con- 
dition of  the  finances  of  the  county. 

To  attend  tax  sales. — The  auditor  is  required  to  attend  all 
sales  of  real  property  for  taxes  made  by  the  treasurer,  and  to 
make  a  record  thereof  in  a  book  to  be  kept  by  hi.n  for  that  pur- 
pose, in  the  same  manner  as  is  required  of  the  treasurer,  and  if  he 


DUTY   RELATING   TO    HIGHWAYS.  329 

fail  to  attend  any  sale  of  lands,  as  aforesaid,  either  in  person,  or 
by  a  competent  deputy,  he  is  liable  to  a  fine  of  not  less  than  fifty, 
nor  more  than  three  hundred  dollars.     Code,  Sees.  882-884. 

Not  to  purchase  at  tax  sales. — Any  county  auditor  who 
shall  be,  directly  or  indirectly,  concerned  in  the  purchase  of  any 
real  property  sold  for  the  payment  of  taxes,  is  liable  to  a  penalty 
of  not  more  than  one  thousand  dollars,  and  all  such  sales  are 
void.     Code,  Sec.  885. 

To  issue  certificates  of  redemption. — The  auditor  is 

required,  upon  the  application  of  any  party,  to  redeem  any  lands 
sold  for  the  payment  of  taxes,  and  upon  being  satisfied  that  said 
party  has  a  right  to  redeem  the  same,  and  upon  the  payment  of 
the  proper  amount,  to  issue  to  such  party  a  certificate  of  redemp- 
tion, setting  forth  the  facts  of  sale  substantially  as  contained  in 
the  certificate  of  sale,  the  date  of  redemption,  the  amount  paid, 
and  by  whom  redeemed;  and  he  shall  make  the  proper  entries  in 
the  book  of  sales  in  his  office,  and  give  immediate  notice  thereof  to 
the  treasurer.     Code,  Sec.  891. 

IV.    RELATING  TO  THE  LOCATION,  ALTERATION, 
OR  VACATION  OF  HIGHWAYS. 

To  appoint  a  commissioner,  when. — On  the  presentation 

of  a  petition  for  the  location,  alteration  or  vacation  of  a  highway, 
he  may  approve  the  bond  required  by  law  for  the  payment  of  the 
costs,  and  appoint  a  commissioner  to  examine  into  the  expediency 
of  the  proposed  highway,  or  the  alteration  or  vacation  thereof, 
and  on  the  filing  of  the  commissioner's  report  in  favor  of  the  same, 
he  must  appoint  a  day,  not  less  than  60  nor  more  than  90  days 
distant,  when  the  matter  will  be  acted  upon.  Code,  Sees.  923, 
924,  934. 

Failure  to  examine  or  report. — The  time  for  the  com- 
missioner to  commence  the  examination,  shall  be  fixed  by  the 
auditor,  and  if  the  commissioner  fails  to  commence  the  examina- 
tion at  the  time  fixed  therefor,  or  if  he  fails  to  report  as  provided 
by  law,  the  auditor  may  fix  another  day,  or  extend  the  time  of 
making  such  report,  or  may  appoint  another  commissioner.  Code, 
Sec.  935. 


230  TDK   AUDITOR. 

Whei'e  no  objections  or  claim  for  damages  are  filed  — 

If  no  objections,  or  claims  for  damages,  are  filed  on  or  before 
noon  of  the  day  fixed  for  filing  the  same,  and  contained  in  the 
notice  served  and  published  as  required  by  the  statute,  and  the 
auditor  is  satisfied  that  the  provisions  of  the  statute  in  relation, 
to  the  proposed  highway  have  been  complied  with,  he  should  pro- 
ceed to  establish  the  highway  as  recommended  by  the  commis- 
sioner, upon  the  payment  of  costs;  but  if  the  auditor  is  satisfied 
that  the  notice  has  not  been  served  and  published  as  required  by 
law,  he  must  appoint  another  day  and  cause  such  notice  to  be 
served,  and  published  as  provided  by  the  statute,  and  thereafter 
proceed  as  before  stated.     Code,  Sees.  937,  938. 

All  proceedings  to  be  entered  in  the  highway  book.— 

Any  order  made,  or  action  taken,  in  the  establishment  of  a  high- 
way should  be  entered  in  the  highway  book,  distinguishing 
between  those  made  or  taken  by  the  auditor,  and  those  by  the 
board  of  supervisors;  and  after  the  highway  has  been  finally  estab- 
lished, the  plat  and  field-notes  must  be  recorded  by  the  auditor, 
and  he  should  certify  the  same  to  the  township  clerk  who  shall 
certify  the  same  to  the  road  supervisors,  and  the  supervisor 
of  highways  shall  be  directed  by  him  to  have  the  same  opened 
and  worked,  allowing  a  reasonable  time  to  enable  the  owners  of 
land  to  erect  the  necessary  fences  adjoining  the  new  highway, 
and  where  crops  have  been  planted,  or  sown  before  the  highway 
is  finally  established,  the  opening  of  the  same  shall  be  deferred 
until  the  crop  is  harvested.  Code,  Sees.  9-i9,  950,  Chap.  19,  Sess. 
Laws,  1874. 

The  form  of  record  in  road  cases. — The  forms  for  keep- 
ing the  records  in  road  cases,  both  where  final  action  is  had  before 
the  board  of  supervisors,  and  also  by  the  auditor,  has  already 
been  furnished,  when  treating  of  supervisors,  and  also  other 
directions  in  relation  thereto. 

Appeal  and  other  matters.— The  bonds  required  on 
appeals  from  the  final  decision  of  the  board  in  relation  to  high- 
ways, must  be  ap})roved  by  the  auditor,  and  he  is  required  on 
appeal  to  file  a  transcript  of  the  papers,  and  proceedings  of  the 
board,   in     the    office    of     the     clerk     of     the    Circuit    Court; 


DUTY   RELATING   TO    SCHOOL   FUND,    ETC.  231 

to  give  notice  by  publication,  or  posting  notices  of  the 
re-survey  of  lands,  where  the  survey  was  defective  or  the  field- 
notes  lost,  and  in  case  said  re-survey  is  approved  by  the  board  of 
supervisors,  to  record  the  same.     Code,  Sees.  9G0,  9G1. 

To  plat  all  higllwaj^'S. — It  is  his  duty  to  cause  every  high- 
way to  be  platted  in  a  book  to  be  obtained  for  that  purpose,  and 
known  as  the  "  Highway  Plat  Book,"  and  have  all  changes  in,  or 
additional  highways  legally  established,  immediately  entered 
upon  said  plat  book,  with  appropriate  references  to  the  files  in 
which  the  papers  relating  to  the  same  may  be  found;  to  furnish 
the  township  clerks  a  certified  copy  of  said  plat  book  so  far  as  the 
same  relates  to  their  respective  townships,  and  the  auditor  is 
required  to  notify  said  clerks  of  all  changes  made  in  the  plat 
book,  so  far  as  they  relate  to  their  townships  respectively.  Code, 
Sees.  965,  966,  967,  968. 

Statement   of  railroad    property. — He  is  required  to 

transmit  a  statement  of  railroad  property  lying  in  each  city, 
town,  township,  or  lesser  taxing  district  through  which  the  rail- 
road runs,  to  the  city  council  or  trustees  of  such  city,  incorporated 
town,  township,  or  lesser  taxing  district.     Code,  Sec.  1321. 

V.  TO  PERFORM  VARIOUS  OTHER  DUTIES. 

He  is  required  to  keep  a  military  register;  issue  warrants  for 
the  expenses  of  taking  insane  persons  to  the  insane  hospital; 
Code,  Sec.  1010;  collect  expenses  for  keeping  insane  persons  in 
certain  cases,  from  their  relations;  Code,  Sec.  1433;  cause  the 
return  of  justices  of  the  peace  in  relation  to  estrays  to  be 
published;  Code,  Sec.  1468;  subscribe  for  one  copy  of  a  newspa- 
per in  which  estray  notices  are  published;  Code,  Sec.  1469;  enter  in 
the  estray  book  the  warrant  issued,  and  the  affidavit  of  the  taker- 
up  of  lost  goo<ls;  l.'ode.  Sec.  1514;  and  fix  a  day  and  cause  notice 
to  be  published  of  the  application  of  a  person  to  sell  intoxicating 
lir^uors;  Code,  Sec.  1529. 

VI.     DUTY  RELATING  TO  THE   SCHOOL  FUND. 
To  apportion  the  school  tax  and  interest.— It  is  the 

duty  of  the  auditor  on  the  first  Monday  of  Aiiril,  and  the  fourth 


232  THE   AUDITOR. 

Monday  of  September,  in  each  year,  to  apportion  the  county 
school  tax,  together  with  the  interest  of  the  permanent  school 
fund,  to  which  the  covnity  is  entitled,  and  all  other  money  in  the 
hands  of  the  county  treasurer,  and  belonging  in  common  to  the 
schools  of  his  county  and  not  included  in  any  previous 
apportionment,  among  the  several  sub-districts  therein,  in  pro- 
portion to  the  number  of  persons  therein  between  five  and  twenty 
years  of  age,  as  shown  by  the  report  of  the  county  superintend- 
ent, filed  with  hnn  for  the  year  immediately  preceding;  and  he 
should  immediately  notify  the  president  of  each  the  sum  to 
which  his  district  is  entitled  by  said  apportionment,  and  is 
required  to  issue  his  warrant  for  the  same  to  accompany  said 
notice,  which  warrant  is  required  to  be  signed  also  by  the  presi- 
dent of  the  district,  and  countersigned  by  the  secretary,  in  whose 
favor  the  same  is  drawn,  and  will  then  authorize  the  district  treas- 
urer to  draw  the  amount  from  the  county  treasurer.    Code,  1781-2. 

To  certify  the  .ippointiueiit  or  election  of  County 

Superintendent. — He  is  required  to  forward  to  the  Superin- 
tendent of  Public  Instruction  a  certificate  of  the  election  or 
appointment  and  qualification,  and  on  the  second  Monday  in  Feb- 
ruary and  August  in  each  year,  transmit  to  the  Auditor  of  State 
a  report  of  the  interest  of  the  school  fund  then  in  the  hands  of 
the  county  treasurer,  and  not  included  in  any  previous  apportion- 
ment, and  also  the  amount  of  said  interest  unpaid.  Code,  Sees. 
1781,  1782,  1783. 
To  report  delinquents  and  make  abstracts.— He  must 

report  delinquents,  who  fail  to  pay  interest  on  amounts  due  the 
school  fund  to  the  district  attorney,  examine  titles,  and  make  and 
preserve  abstracts  of  titles  to  lands  given  in  security  for  money 
borrowed  of  the  permanent  school  fund,  and  approve  the  security 
therefor,  in  cases  where  he  grants  applications  for  loans.  Code, 
Sec.  1864. 
To  report  money  received  and  paid  out.— He  is  required 

at  each  meeting  of  the  board  of  supervisors,  to  give  them  a  full 
statement  of  all  money  received  for,  and  loaned  out  of,  the  school 
fund,  and  submit  to  their  examination  all  notes,  mortgages  and 
abstracts  of  title,  connected  therewith.     Code,  Sec.  1866. 


TRANSFER  AND  INDEX  BOOKS. 


233 


Liable  on  his  bond,  etc. — He  is  liable  on  his  official  bond 
for  amounts  loaned  where  the  security  is  insufficient;  he  may 
give  certificates  to  debtors  of  the  school  fund  of  the  amount  due 
from  them;  publish  notices  of  the  time  when  debts  become  due 
to  the  school  fund;  keep  an  account  of  the  school  fund  with  the 
county  treasurer;  repoi't  annually  to  the  Auditor  of  State  the 
sales  of  school  lands,  and  also  when  the  school  fund  on  hand  can- 
not be  loaned.     Code,  Sees.  1872,  1877,  1881, 1883. 

For  failure  to  perform  duty.— For  a  failure  or  neglect  to 
perform  any  of  the  duties  required  of  him  relating  to  the  school 
fund,  the  auditor  is  liable  to  a  fine  of  not  less  than  one  and  not 
more  than  five  hundred  dollars.     Code,  Sec.  1878. 


VII.     TRANSFER  AND  INDEX  BOOKS. 

The  provisions  of  the  Code,  in  reference  to  transfer  and  index 
books,  are  as  follows: 

TRANSFER  AND  INDEX  BOOKS. 

County  auditor  to  keep. — Section  1948.  The  county  auditor  shall  keep  in 
his  office,  books  for  the  transfer  of  real  estate,  which  shall  consist  of  a  transfer  book, 
index  book,  and  book  of  plats. 

Form  of. — Sec.  1949.  Said  transfer  book  shall  be  ruled  and  headed  substantially 
after  the  following  form ;  and  entries  thereupon  shall  be  in  numerical  order  begin- 
nig  with  section  one. 


SECTION    NO. 


TOWNSHIP 


,    RANGE 


Grantee. 

Grantor. 

Date    of    in- 
strument. 

Description. 

Page  of  Plats. 

THE   INDEX    BOOK   THUS: 


NAMES   OF   GRANTEES. 

PAGES   OF  TRANSFER     BOOK. 

yj4  THE   AUDITOR. 

Book  of  plats  :  how  ruled  and  kept. — Sec.  1950.  The  auditor  shall  so  keep 
the  book  of  plats  as  to  show  the  number  of  lot  and  block,  or  township  and  rHnge, 
divided  into  sections  and  sub-divisions  as  occasion  may  require,  and  shall  designate 
thereon  each  piece  of  land  or  town  lot,  and  mark  in  pencil  the  name  of  the  owner 
thereon  in  a  legible  manner.  Said  plats  shall  be  lettered  or  numbered  so  that  they 
may  be  conveniently  referred  to  by  the  memoranda  of  the  transfer  book,  and  shall  be 
drawn  on  a  scale  of  not  less  than  four  inches  to  the  mile. 

Entries  by  auditor  in  index  and  transfer  hook. — Sec.  1951.  Whenever  a 
deed  of  unconditional  conveyance  of  real  estate  is  presented,  the  auditor  shall  enter 
in  the  inde.x  book,  in  alphabetical  order,  the  name  of  the  grantee,  and  opposite  thereto 
the  numberof  thepageof  the  transfer  book  on  which  such  transfer  is  made;  and  upon 
the  transfer  bookhe  shall  enter  in  the  proper  columns,  the  name  of  the  grantee,  the  name 
of  the  grantor,  date  of  instrument,  the  character  of  the  instrument,  the  description  of 
the  property,  and  the  number  or  letter  of  the  plat  on  which  the  same  is  marked. 

Indorse  deed. — Sec.  1952.  After  the  auditor  has  made  the  entries  contemplated 
in  the  preceding  section,    he   shall   indorse   upon  the   deed   the   following  words: 

"  Entered  for  taxation  this    .    .    .    day   of    .    .    .    A.  D "  with  the  proper 

date  inserted,  and  sign  his  name  thereto. 

Cannot  he  filed  for  record  until  indorsed. — Sec.  1953.  The  recorder  shall 
not  file  for  record  any  deed  of  real  property,  until  the  proper  entries  have  been  made 
upon  the  transfer  books  in  the  auditor's  office  and  indorsed  upon  the  deed. 

Auditor  correct. — Sec.  1954.  The  auditor  shall  correct  the  transfer  books  from 
time  to  time,  as  he  shall  find  them  incorrect. 


VIII.     FEES  AND  COMPENSATION  OF  THE  AUDITOR. 

The  provisions  of  the  Code  in  reference  to  fees  and  compensa- 
tion of  the  county  auditor  are  as  follows: 

Fees. — Section.  3797.  The  county  auditor  shall  be  entitled  to  charge  and  receive 
the  followmg  fees ; 

For  recording  each  bond  required  to  be  by  him  recorded,  fifty  cents ; 

For  transfers  made  in  the  transfer  books,  for  each  deed,  twenty-five  cents; 

For  issuing  certificate  of  redemption  of  land  sold  for  taxes,  twenty-five  cents; 

For  each  certificate  issued  by  the  treasurer  for  lands  sold  for  non-payment  of  taxes, 
fifteen  cents. 

Eender  account  of  fees  to  supervisors :  additional  compensation. — Sec.  3798. 
Such  auditor  shall  enter  in  a  book  kept  for  that  purpose,  all  fees  contemplated  in  the 
preceding  section  received  by  him,  and  shall  render  to  the  board  of  supervisors  at 
each  session,  an  account  verified  by  affidavit,  stating  the  amount  of  fees  received  and 
from  what  source  derived,  and  the  said  board  shall  allow  him  such  additional  com- 
pensation as  is  deemed  just  and  proper. 

Session  Laws  1874. — Additional  duties  are  imposed  on 
the  auditor  by  the  laws  of  1874,  as  follows: 

He  is  required  to  furnish  to  any  State  institution  in  his  county, 
and  to  each  justice  of  the  peace  and  township  clerk  of  his  county, 
a  copy  of  the  Code  and  take  a  receipt  therefor;  and  in  case  the 


FEES   AND    COMPENSATION.  335 

number  of  Codes  he  may  have  on  hand  are  not  sufficient  there- 
for, he  is  authorized  to  draw  upon  the  Secretary  of  State  to 
supply  the  deficiency.  Sess.  Laws,  1874,  Chap.  15,  He  is  also 
required  to  issue  warrants  to  jurors  on  the  certificate  of  the  clerk 
of  the  amounts  due  them  as  jurors,  without  the  same  being 
audited  by  the  board  of  supervisors.  Session  Laws,  1874, 
Chap.  16. 


236  THE   TREASURER. 


CHAPTER  XXXIII. 


THE  TREASURER. 

I.    THE   IMPORTANCE  OF— HIS  ELECTION— QUALIFI- 
CATION. 

The  importance  of  the  office. — The  office  of  the  county 

treasurer  is  one  of  the  most  important  and  responsible  of  the 
county  officers. 

He  has  charge  of  the  revenues  of  the  county,  and  is  its  finan- 
cial agent. 

Election  and  qnalification,  etc. — The  provisions  of  the 

Code  relating  to  his  election  qualification,  removal,  suspension, 
appointment  of  deputies,  additional  security,  vacancies,  criminal 
acts,  and  the  publication  of  official  notices,  may  be  found  in 
Chapter  One;  and  directions  and  forms  relating  to  several  of  these 
matters  have  been  given  in  treating  them  in  connection  with  the 
office  of  the  clerk. 

II.    GENERAL   DUTIES. 
Provisions  relating  to  his  duties.— The  Code  provides: 

To  receive  funds. — Section  327.  Tlie  treasurer  shall  receive  all  money  payable 
to  the  county,  and  disburse  the  same  on  warrants  drawn  and  signed  by  the  county 
auditor  and  sealed  with  the  county  seal,  and  not  otherwise  ;  and  shall  keep  a  true 
account  of  all  receipts  and  disbursements,  and  hold  the  same  at  all  times  ready  for 
the  inspection  of  the  board  of  supervisors. 

When  no  funds. — Sec.  328.  When  the  warrant  drawn  by  the  auditor  on  the 
treasurer  is  presented  for  payment,  and  not  paid  for  want  of  money,  the  treasurer 
shall  indorse  thereon  a  note  of  that  fact  and  the  date  of  presentation,  and  sign  it,  and 
thenceforth  it  shall  draw  interest  at  the  rate  of  six  per  cent.;  and  when  a  warrant 
which  draws  interest  is  taken  up,  the  treasurer  is  required  to  indorse  upon  it  the  date 


GENERAI.   DUTIES.  237 

and  amount  of  interest  allowed,  and  such  warrant  is  to  be  considered  as  canceled, 
and  shall  not  be  re-issued. 

Warrants  when  divided. — Sec.  329.  When  a  person  wishing  to  make  a  pay- 
ment into  the  treasury,  presents  a  warrant  of  an  amount  greater  than  such  payment, 
the  treasurer  shall  cancel  the  same  and  give  the  holder  a  certificate  of  the  overplus, 
upon  the  presentation  of  which  to  the  county  auditor,  he  shall  file  it  and  issue  a  new 
warrant  of  that  amount  and  charge  the  treasurer  therewith,  and  such  certificate  is 
transferable  by  delivery,  and  will  entitle  the  holder  to  the  new  warrant,  which,  how- 
ever, must  be  issued  in  the  first  drawee's  name. 

Warrant  book. — Sec.  S.SO.  The  treasurer  shall  keep  a  book  ruled  so  as  to  contain 
a  column  for  each  of  the  following  items  in  relation  to  the  warrants  drawn  on  him 
by  the  auditor,  the  number,  date,  drawee's  name,  when  paid,  to  whom,  original 
amount,  and  interest  paid  on  each. 

Keep  separate  accounts. — Sec.  331.  The  treasurer  shall  keep  a  separate  account 
of  the  several  taxes  for  state,  county,  school,  and  highway  purposes,  opening  an 
account  between  himself  and  each  of  those  funds,  charging  himself  with  the  amount 
of  the  tax,  and  crediting  himself  with  the  amounts  paid  over  severally,  and  with  the 
amount  of  delinquent  taxes  when  legally  authorized  so  to  do. 

Warrants  canceled. — Sec.  332.  The  warrants  returned  by  the  treasurer  shall 
be  compared  with  the  warrant  book,  and  the  word  "  canceled  "  be  written  over  the 
niinute  of  the  proper  numbers  in  the  warrant  book,  and  the  original  warrant  be  pre- 
served for  at  least  two  years. 

Beturns  of. — Sec.  333.  The  treasurer  is  required  to  make  weekly  returns  to  the 
auditor  of  the  number,  date,  drawee's  name,  when  paid,  to  whom  paid,  original 
amount,  and  interest,  as  kept  in  the  book  before  directed. 

Accounts  each  term. — Sec.  334.  A  person  re-elected  to,  or  holding  over  the 
office  of  treasurer,  shall  keep  separate  accounts  for  each  term  of  his  office. 

When  county  bonds  are  issued.— His  duty  when  county 

bonds  are  issued  is  provided  for  as  follows: 

Disposition  of  bonds.— Section  290.  Whenever  bonds,  issued  under  this  chapter, 
shall  be  duly  executed,  numbered  consecutively  and  sealed,  they  shall  be  delivered 
to  the  county  treasurer,  and  his  receipt  taken  therefor,  and  he  shall  stand  charged  on 
his  official  bond  with  all  bonds  delivered  to  him  and  the  proceeds  thereof,  and  he 
shall  sell  the  same,  or  exchange  them,  on  the  best  available  terms  for  any  legal  indebt- 
edness of  the  county,  outstanding  on  the  first  of  January,  1872,  [January,  1874,  by 
Session  Laws  1874,  Chap.  9],  but  in  neither  case  for  a  less  sum  than  the  face  value 
of  the  bonds,  and  all  interest  accrued  on  them  at  the  date  of  such  sale  or  exchange. 
And  if  any  portion  of  said  bonds  are  sold  for  money,  the  proceeds  thereof  shall  be 
applied  exclusively  for  the  payment  of  liabilities  existing  against  the  county  at  and 
before  the  date  above  named.  When  they  are  exchanged  for  warrants  and  other 
legal  evidence  of  county  indebtedness,  the  treasurerer  shall  at  once  proceed  to  cancel 
such  evidence  of  indebtedness,  by  indorsing  on  the  face  thereof  the  amount  for  which 
they  were  received,  the  word  "canceled,"  and  the  date  of  cancellation.  He  shall 
also  keep  a  record  of  bonds  sold  or  exchanged  by  him  by  number,  date  of  sale,  amount, 
date  of  maturity,  the  name  and  post  office  address  of  purchasers,  and,  if  exchanged, 
what  evidences  of  indebtedness  were  received  therefor,  which  record  shall  be  open  at 
all  times  for  inspection  by  the  public.  Whenever  the  holder  of  any  bond  shall  sell 
or  transfer  it,  the  purch.i.scr  shall  notify  the  treasurer  of  such  purchase,  giving  at  the 
same  time  the  number  of  the  bond  transferred  and  his  post  office  address  ;  and  every 


238  THE   TREASURER. 

such  transfer  shall  be  noted  on  the  record.  The  treiisurer  shall  also  report,  under 
oath,  to  the  board  at  each  regular  session,  a  statement  of  all  bonds  sold  or  exchanged 
by  him  since  the  preceding  report,  and  the  date  of  such  sale  or  exchange  ;  and,  when 
exchanged,  a  list  or  description  of  the  county  indebtedness  exchanged  therefor,  and  the 
amount  of  accrued  interest  received  by  him  on  such  sale  or  exchange,  which  latter 
sum  shall  be  charged  to  him  as  money  received  on  bond  fund,  and  so  entered  by  him 
ou  his  books  ;  but  such  bonds  shall  not  be  exchanged  for  any  indebtedness  of  the 
county  except  by  the  approval  of  the  board  of  supervisors  of  said  county. 

Tax  levied  to  pay  bonds. — Sec.  291.  The  board  of  supervisors  shall  cause  to  be 
assessed  and  levied  each  year  upon  the  taxable  property  of  the  county,  in  addition 
to  the  levy  authorized  for  other  purposes,  a  sufficient  sum  to  pay  the  interest  on  out- 
standing bonds  issued  in  conformity  with  the  provisions  of  this  chapter  accruing 
before  the  next  annual  levy,  and  such  proportion  of  the  principal,  that  at  the  end  of 
three  years  the  sum  raised  from  such  levies  shall  equal  at  least  twenty  per  cent,  of 
the  amount  of  bonds  issued ;  at  the  end  of  five  years  at  least  forty  per  cent,  of  the 
amount ;  and  at  and  before  the  date  of  maturity  of  the  bonds,  shall  be  equal  to  the 
whole  amount  of  the  principal  and  interest;  and  the  money  arising  from  such  levies 
shall  be  known  as  the  bond-fund,  and  shall  be  used  for  the  payment  of  bonds  and  inter- 
est-coupons, and  for  no  other  purpose  whatever;  and  the  treasurer  shall  open  and 
keep  in  his  books  a  separate  and  special  account  thereof,  which  shall  at  all  times 
show  the  exact  condition  of  said  bond-fund. 

How  paid  or  redeemed. — Sec.  292.  WTienever  the  amount  in  the  hands  of  the 
treasurer  belonging  to  the  bond-fund,  after  setting  aside  the  sum  required  to  pay 
interest  matiiring  before  the  next  Ie\'y,  is  sufficient  to  redeem  one  or  more  bonds,  he 
shall  notify  the  owner  of  such  bond  or  bonds  that  he  is  prepared  to  pay  the  same, 
with  all  interest  accrued  thereon,  and  if  not  presented  for  payment  or  redemption 
within  thirty  days  after  the  date  of  such  notice,  the  interest  on  such  bonds  shall 
cease,  and  the  amount  due  thereon  shall  be  set  aside  for  its  payment  whenever  pre- 
sented. All  redemptions  shall  be  made  in  the  exact  order  of  their  issuance,  begin- 
ning at  the  lowest  or  first  number ;  and  the  notice  herein  required  shall  be  directed 
to  the  post-office  address  of  the  owner,  as  shown  by  the  record  kept  in  the  treasurer's 
office. 

III.     HIS  DUTY  RELATING  TO  TAXES. 

Duplicate  tax  lists. — The  Code  provides  in  relation 
thereto  as  follows: 

Auditor's  duty. — Section  402.  The  auditor,  in  counties  where  township  col 
lectors  are  elected,  shall  make  out  a  duplicate  tax  list  of  each  township,  and  deliver 
the  same,  with  the  original,  to  the  county  treasurer. 

Treasurer's  duty:  powers  of  collector.— Sec.  403.  The  county  treasurer  shall 
deliver  to  each  township  collector  in  the  county,  as  soon  as  he  has  qualified,  such 
duplicate  tax  list  of  his  township,  and  take  his  receipt  therefor,  specifying  the  total 
amoimt  of  the  tax  charged  in  such  list,  and  charge  the  same  over  to  each  township 
collector  in  a  book  to  be  kept  for  that  purpose;  and  such  duplicate  tax  list,  when  so 
made  out  and  delivered  to  the  township  collectors,  may  be  used  as  an  execution,  and 
shall  be  sufficient  authority  for  them  to  collect  the  taxes  therein  charged  in  any 
townsljip  in  the  county  by  distress  and  sale  or  otherwise,  as  now  provided  by  law  for 
the  collection  of  taxes  by  the  county  treasurer;  and  the  county  treasurer  shall  not 
receive  or  collect  any  of  the  taxes  charged  in  any  duplicate  tax  list  so  delivered, 


DUTY  RELATING  TO  TAXES.  239 

except  the  tax  of  non-residents  of  the  township,  until  the  same  has  been  returned  to 
him  as  hereinafter  provided.  The  said  county  treasurer  shall  procure  for  and 
deliver  to  each  township  collector  with  said  tax  list,  a  tax  receipt-book,  with  a  blank 
margin  or  stub,  upon  which  the  said  township  collector  shall  enter  the  number  and 
date  of  the  tax  receipt  given  to  the  tax-payer,  the  amount  of  tax  and  by  whom  paid, 
which  said  tax  receipt-book  shall  be  returned  to  the  county  treasurer,  with  the  said 
duplicate  tax  list,  as  hereinafter  provided. 

Duty  of  township  collectors  thereupon. — The    Code 

further  provides  that  the  collectors  shall  give  notice  of  the  recep- 
tion of  said  tax  list,  and  proceed  to  collect  the  taxes,  and  make 
monthly  statements  to  the  county  treasurer,  and  pay  over  to  him 
monthly  the  amounts  collected  by  them,  vphich  matters  we  shall 
hereafter  have  occasion  to  consider  more  fully  when  treating  of 
township  collectors.     Code,  Sec.  404. 

Treasurer's  duty  relative  to  unpaid  taxes.— The  Code 

provides: 

Unpaid  taxes. — Section  408.  After  the  return  of  said  duplicate  tax  lists  and 
settlement  as  provided  above,  the  county  treasurer  .shall  receive,  receipt  for,  and 
collect  any  unpaid  taxes  in  the  county,  and  shall  proceed  to  advertise  and  sell  all 
the  real  estate  in  the  county  upon  which  the  taxes  have  not  been  paid,  for  the  unpaid 
taxes  thereon  as  provided  by  law. 

When  there  is  failure  to  collect. — Sec.  409.  If  any  of  the  taxes  mentioned  in 
the  tax  list  shall  remain  unpaid,  and  the  collector  shall  not  be  able  to  collect  the  same, 
he  shall  deliver  to  the  county  treasurer  an  account  of  the  taxes  so  remaining  due; 
and  upon  making  oath  before  the  county  auditor,  or  in  case  of  his  absence,  before 
any  justice  of  the  peace,  that  the  sums  mentioned  in  such  account  remain  unpaid, 
and  that  he  has  not,  upon  diligent  inquiry,  been  able  to  discover  any  goods  or  chat- 
tels belonging  to  or  in  the  possession  of  the  person  charged  with  or  liable  to  pay  such 
sums,  whereon  he  could  levy  the  same,  he  shall  be  credited  by  the  county  treas- 
urer with  the  amount  thereof,  but  such  oath  and  credit  shall  only  be  presumptive 
evidence  of  the  correctness  thereof. 

Liability. — Sec.  410.  Such  collector  and  his  sureties  shall  be  liable  for  the  loss 
by  theft  or  otherwise,  of  any  money  collected  by  him  and  in  his  possession. 

Taxes  collected  for  a  township  board  of  health.— The 

taxes  levied  by  the  board  of  supervisors  on  any  township  to  pro- 
vide for  the  expenses  of  the  board  of  health  of  the  township,  the 
treasurer  is  required  to  collect  with  the  other  taxes  and  pay  over 
to  the  township  clerk.     Code,  Sec.  420. 

He  is    required  to  pay  over   to    the  treasurer  of 

municipal  corporations. — All  moneys  received  by  him  arising 
frpm  taxes  levied  belonging  to  such  corporation  on  or  before  the 
first  day  of  March  in  each  year,  and  such  moneys  as  the  treasurer 


340  THE   TREASTJBEB. 

receives  after  that  time  for  delinquent  taxes    belonging  to  such 
corporation,  he  is  required  to  pay  to  the  treasurer  thereof  when 
demanded.     Code,  Sec.  498. 
The  ooUoction  of  the  taxes  generally.— For  the  purpose 

of  presenting  the  treasurer's  duties  in  relation  to  taxes  generally, 
it  is  deemed  advisable  to  copy  the  provisions  of  the  Code  in 
reference  thereto,  which  are  as  follows: 

To  enter  taxes  unpaid  for  previous  years:  sale  void.— Section  845.  The 
treasurer,  on  receiving  the  tax  book  for  each  year,  shall  enter  upon  the  same  in  sepa- 
rate columns,  opposite  each  parcel  of  real  property  or  person's  name,  on  which,  or 
against  whom  any  tax  remains  unpaid  for  ether  of  the  preceding  years,  the  year  or 
years  for  which  such  delinquent  tax  so  remains  due  and  unpaid.  And  any  sale  for 
the  whole  or  any  part  of  such  delinquent  tax,  not  so  entered,  shall  be  invalid. 

Treasurer  to  collect:  illegality  in  proceedings. — Sec.  846.  The  treasurer, 
after  making  the  .above  entry,  shall  proceed  to  collect  the  taxes,  and  the  list  shall  be 
his  authority  and  justification  against  any  illegality  in  the  proceedings  prior  to  receiv- 
ing the  list;  and  he  is  also  authorized  and  required  to  collect,  as  far  as  practicable,  the 
taxes  remaining  unpaid  on  the  tax  books  of  previous  years. 

Notice  when  land  has  been  sold. — Sec.  847,  Each  county  treasurer  shall,  when 
any  person  offers  to  pay  taxes  on  any  real  estate  marked  "  sold,"  notify  such  person 
that  such  property  has  been  sold  for  taxes,  and  inform  him  for  what  taxes  said  prop- 
erty was  sold,  and  at  what  time  said  sale  was  effected. 

To  certify  amount  required  to  pay  taxes  and  redeem :  compensation  for. — 
Sec  848.  The  county  treasurer  shalU  certify,  in  writing,  the  entire  amount  of  taxes 
and  assessments  due  upon  any  parcel  of  real  estate,  and  all  sales  of  the  same  for 
unpaid  taxes  or  assessments  shown  by  the  books  in  his  office,  with  amount  required 
for  redemption  from  the  same,  if  still  redeemable,  whenever  he  shall  be  requested  so 
to  do  by  any  person  having  any  interest  in  said  real  estate,  and  paid  or  tendered  his 
fees  for  such  certificate  at  the  rate  of  fifty  cents  for  the  first  parcel  in  each  township, 
incorporated  town,  or  city,  and  ten  cents  for  each  subsequent  parcel  in  the  same 
township,  town  or  city.  Each  description  in  the  tax  list  shall  be  reckoned  a  parcel 
in  computing  the  amount  of  such  fees. 

EfiEect  of  certificate. — Sec.  849.  Such  certificates,  with  the  treasurer's  receipt 
showing  the  payment  of  all  the  taxes  therein  specified,  and  the  auditor's  certificate  of 
redemption  from  the  tax  sales  therein  mentioned,  shall  be  conclusive  evidence  for  all 
purposes  and  against  all  persons,  that  the  parcel  of  real  estate  in  said  certificate  and 
receipt  described,  was,  at  the  date  thereof,  free  and  clear  of  all  taxes  and  assess- 
ments, and  sales  for  taxes  or  assessments,  except  sales  whereon  the  time  of  redemp- 
tion had  already  expired,  and  the  tax  purchaser  had  received  his  deed. 

Treasurer  liable  for  error. — Sec.  850.  For  any  loss  resulting  to  the  county,  or 
any  sub-division  thereof,  or  to  any  tax-purchaser,  or  tax-payer,  from  an  error  in  said 
certificate  or  receipt,  the  treasurer  and  his  sureties  shall  be  liable  on  his  official  bond. 

May  assess  property  omitted. — Sec,  851.  The  county  treasurer  shall  assess  any 
real  property  subject  to  taxation,  which  may  have  been  omitted  by  the  assessor, 
board  of  equalization,  or  county  auditor,  and  collect  taxes  thereon,  and  in  such  cases 
he  is  required  to  note  opposite  the  tract  or  lot  assessed,  the  words,  "  by  treasurer ;  " 
provided,  that  such  assessment  shall  be  made  within  two  years  after  the  tax  list  shall 
have  been  delivered  to  him  for  collection,  and  not  afterwards. 


DUTY  RELATIN^G  TO  TAXES.  241 

Owner  to  have  property  omitted  assessed. — Sec.  852.  In  all  cases  where  real 
property  subject  to  taxation  shall  not  have  been  assessed  by  the  township  assessor  or 
other  proper  officer,  the  owner  thereof,  by  himself  or  his  agent,  shall  have  the  same 
properly  assessed  by  the  treasurer  and  to  pay  the  taxes  thereon  ;  and  no  failure  of  the 
owner  to  have  such  property  assessed,  or  to  have  the  errors  in  the  assessment  cor- 
rected, and  no  irregularity,  error,  or  omission  in  the  assessment  of  such  property, 
shall  affect  in  any  manner  the  legality  of  the  taxes  levied  thereon,  or  affect  any  right 
or  title  to  such  real  property  which  would  have  accrued  to  any  party  claiming  or 
holding  under  and  by  virtue  of  a  deed  executed  by  the  treasurer  as  provided  for  by 
this  title,  had  the  assessment  of  such  property  been  in  all  respects  regular  and  valid. 

Taxes  when  lien. — Skc.  853.  All  taxes  upon  real  estate  shall,  as  between  vendor 
and  purchaser,  become  a  lien  upon  such  real  estate  on  and  after  the  first  day  or 
November  in  each  year. 

Warrants  received  for  taxes. — Sec.  854.  Auditor's  warrants  shall  be  received 
by  the  county  treasurer  in  full  payment  of  state  taxes,  and  county  warrants  shall  be 
received  at  the  treasury  of  the  proper  county  for  the  ordinary  county  tax,  but  money 
only  shall  be  received  for  the  school  tax.  Highway  taxes  may  be  discharged  and 
highway  certificates  of  work  done  received  as  provided  by  law. 

Currency  received  for  taxes. — Sec.  855.  The  county  treasurers  are  authorized 
and  required  to  receive  in  payment  of  all  taxes  by  them  collected,  together  with  the 
interest  and  principal  of  the  school  fund,  treasury  notes  issued  as  legal  tender  by  the 
government  of  the  United  States,  and  the  notes  issued  by  the  banks  organized  under, 
and  in  accordance  with,  the  conditions  of  the  act  of  the  congress  of  the  United  States 
entitled,  "  An  act  to  provide  a  national  currency  secured  by  a  pledge  of  United  States 
stocks,  and  to  provide  for  the  redemption  thereof,"  approved  February  25,  180.3. 

Same  received  by  treasurer  of  state. — Sec.  856.  The  treasurer  of  state  is 
hereby  required  to  receive  of  the  several  county  treasurers  the  above  mentioned 
notes,  in  payment  of  any  claims  the  state  may  have  against  any  county  for  any  part 
af  the  permanent  school  fund,  or  for  any  taxes  due  the  state;  and  the  state  treasurer 
shall  pay  out  said  notes  in  redemption  of  outstanding  auditor's  warrants. 

DISTRESS   AND    SALE, 

"When  and  how  made. — Sec.  857.  No  demand  of  taxes  shall  be  necessary,  but 
it  is  the  duty  of  every  person  subject  to  taxation  to  attend  at  the  office  of  the  treas- 
urer, unless  otherwise  provided,  at  some  time  between  the  second  Monday  of  Novem- 
ber and  the  first  day  of  February,  and  pay  his  taxes;  and  if  any  one  neglects  to  pay 
them  before  the  first  day  of  February  following  the  levy  of  the  tax,  the  treasurer  is 
directed  to  make  the  same  by  distress  and  sale  of  his  personal  property,  not  exempt 
from  taxation,  and  the  tax-list  alone  shall  be  sufficient  warrant  for  such  distress. 

Notice  of  sale  given:  expenses:  proceeds. — Sec.  858.  When  the  treasurer 
distrains  goods,  and  ihc  owner  sliall  refuse  to  give  a  good  and  sufficient  bond  for  the 
delivery  of  said  goods  on  the  day  of  sale,  he  may  keep  them  at  the  expense  of  the 
owner,  and  shall  give  notice  of  the  time  and  place  of  their  sale  within  five  days  after  the 
taking,  in  the  manner  constables  are  required  to  give  notice  of  the  sale  of  jiersonal 
property  under  execution  ;  and  the  time  of  sale  shall  not  be  more  than  twenty  days 
from  tlie  day  of  taking,  but  he  may  adjourn  the  sale  from  time  to  time,  not  exceed- 
ing five  days  in  all,  and  shall  adjourn  at  least  once  when  there  arc  no  bidders,  and  in 
case  of  adjournment  he  shall  put  up  a  notice  thereof  at  the  place  of  sale.  Any  sur- 
plus remaining  above  the  taxes,  charges  of  keeping,  and  fees  for  sale,  shall  be  returned 
to  the  owner,  and  the  treasurer  shall,  on  demand,  render  an  account  in  writing  of  the 
sale  and  charges. 

16 


242  THE    TREASURER. 

Deputies:  compensation:  delinquent  taxes. — Sec.  859.  Immediately  after  the 
taxes  become  drlinquciu,  e.ich  county  treasurer  shall  proceed  to  eolleet  the  same  by 
distress  and  sale  of  the  personal  property  of  the  delinquent  tax-pnyers,  in  the  manner 
prescribed  in  the  preceding  section,  and  for  this  purpose  he  shall,  within  sixty  days 
after  the  taxes  become  delinquent,  appoint  one  or  more  deputies  to  aid  and  assist  him 
in  collecting  the  delinquent  taxes  in  his  county.  Each  deputy  so  appointed,  shall 
receive  as  aicompensation  for  his  services,  and  expenses,  the  sum  of  five  per  cent,  on 
the  amount  of  all  delinquent  taxes  collected  and  paid  over  by  him,  which  jjercentage 
he  shall  collect  from  the  delinquent,  together  with  the  whole  amount  of  delinciuent 
taxes  and  interest ;  and  in  the  discharge  of  his  duties  as  such  assistant  collector,  .should 
it  become  necessary  to  make  the  delinquent  taxes  by  distress  and  sale,  he  shall  be 
entitled  to  receive  the  same  compensation,  in  addition  to  the  five  per  cent,  provided 
for  in  this  section,  as  constables  are  entitled  to  receive  for  the  sale  of  property  on 
execution.  But  this  section  sha'l  not  apply,  so  far  as  it  authorizes  the  appointment 
of  deputies,  to  any  county  in  which  township  collectors  of  taxes  are  elected,  and  the 
owners  or  agents  of  land  that  has  been  sold  for  delinquent  taxes  shall  have  the  same 
privilege  and  extension  of  time  for  paying  taxes  as  other  tax  jxiyers  whose  land  has 
not  been  so  sold. 

When  treasurer  is  resisted.— Sec.  860.  If  the  treasurer,  or  his  deputy,  be 
resisted  or  impeded  in  the  execution  of  his  office,  he  may  require  any  suitable  person 
to  assist  him  therein,  and  if  such  person  refuse  the  aid,  he  shall  forfeit  a  sum  not 
exceeding  ten  dollars  to  be  recovered  by  civil  action  in  the  name  of  the  county,  and 
the  person  resisting  shall  be  liable  as  in  the  case  of  resisting  the  sheriff  in  the  execu- 
tion of  civil  process. 

Taxes  certified  to  treasurer  of  any  other  county. — Sec.  8G1.  In  all  cases  of 
delinquent  taxes,  in  any  county  where  the  person  upon  whose  projjerty  the  same  were 
levied,  shall  have  removed  into  another  county  of  the  state,  leaving  no  property 
within  the  county  where  the  taxes  were  levied,  out  of  which  the  same  can  be  made, 
the  treasurer  of  the  county  where  said  taxes  are  delinquent,  shall  make  out  a  certified 
abstract  of  said  taxes  as  they  appear  upon  the  tax-book,  and  forward  the  same  to  the 
treasurer  of  the  county  in  which  the  person  resides,  or  has  projjerty,  who  is  owing 
said  taxes,  whenever  the  treasurer  transmitting  said  abstract  has  reason  to  believe  that 
said  taxes  can  be  collected  thereby. 

Force  and  effect  of. — Sec.  8(52.  The  treasurer  forwarding,  and  the  one  receiving, 
said  abstract,  shall  each  keep  a  record  thereof,  and  upon  the  recei)>t  and  filing  of  said 
abstract  in  the  office  of  the  treasurer  to  whom  the  same  is  sent,  it  shall  have  the  full 
force  and  effect  of  a  levy  of  taxes  in  that  county,  and  the  collection  of  the  same  shall 
be  proceeded  with  in  the  same  manner  provided  by  law  for  the  collection  of  other 
taxes. 

Penalty. — Sec.  86.3.  The  officer  collecting  taxes  so  certified  into  another  county, 
shall,  in  addition  to  the  penalties  provided  by  law  on  delinquent  taxes,  assess  and 
collect  the  further  penalty  of  twenty  pt.'r  cent,  on  the  whole  amount  of  such  taxes, 
inclusive  of  the  penalties  thereon. 

Eeturn  made. — Sec.  864.  The  officer  receivingsaid  abstract,  shall,  whenever  in 
his  opinion  the  taxes  are  uncollectable,  return  the  abstract  with  the  indorsement 
thereon  of  "  uncollectable,"  and  in  case  said  taxes  are  collected,  the  officer  receiving 
the  same  shall  transmit  the  amount  to  the  treasurer  of  the  county  where  said  taxes 
were  levied,  less  the  penalty  provided  by  section  eight  hundred  and  sixty-three  of 
this  chapter. 


DUTY   RELATING    TO    TAXES.  243 

DELINQUENT LIEN PENALTY. 

When  delinquent :  liens  on  property. — Sec.  865.  On  the  first  day  of  February, 
the  unpaid  taxes,  of  whatever  description,  for  the  preceding  year  shall  become  delin- 
quent and  shall  draw  interest  as  hereinafter  provided;  and  taxes  upon  real  property 
are  hereby  made  a  perpetual  lien  thereon  against  all  persons  except  the  United  States 
and  this  state,  and  taxes  due  from  any  person  upon  personal  property  shall  be  a  lien 
upon  any  real  property  owned  by  such  person  or  to  which  he  may  acquire  a  title. 
The  treasurer  is  authorized  and  directed  to  collect  the  delinquent  taxes  by  the  sale  of 
any  property  upon  which  the  taxes  are  levied,  or  any  other  personal  or  real  property 
belonging  to  the  person  against  whom  the  taxes  are  assessed. 

Penalty  after  delinquent. — Sec.  866.  The  treasurer  shall  continue  to  receive  taxes 
after  they  become  delinquent,  untill  collected  by  distress  and  sale ;  but  if  they  are  not 
paid  before  the  first  day  of  March,  he  shall  collect,  in  addition  to  the  tax  of  each 
tax-payer  so  delinquent,  as  a  penalty  for  non-payment,  at  the  rate  of  one  per  cent,  a 
month  on  the  amount  of  the  tax  for  the  first  three  months,  two  per  cent,  for  the 
second  three  months,  and  three  per  cent,  a  month  thereafter.  But  the  penalty  pro- 
vided by  this  section  shall  not  be  construed  to  apply,  and  shall  not  apply,  upon  taxes 
levied  by  order  of  any  court  to  pay  judgments  on  city  or  county  bonded  indebted- 
ness, and  upon  such  taxes  no  other  penalty  than  the  interest  which  such  judgments 
draw  shall  be  collected 

MISCELLANEOUS. 

Formofreoeipt:  effect  of.- -Sec.  807.  The  treasurer  shall,  in  all  cases,  make  out  and 
deliver  to  the  tax-payer  a  receipt,  stating  the  time  of  payment,  the  description  and 
assessed  value  of  each  parcel  of  land,  and  the  assessed  value  of  personal  property, 
the  amount  of  each  kind  of  tax,  the  interest  on  each,  and  costs,  if  anV,  giving  a  sepa- 
rate receipt  for  each  year;  and  he  shall  make  the  proper  entries  of  such  payments 
on  the  books  of  his  office.  Such  receipt  shall  be  in  full  of  the  party's  taxes  for  that 
year,  but  the  treasurer  shall  receive  the  full  amount  of  any  county,  state,  or  school 
tax,  whenever  the  same  is  tendered,  and  give  a  separate  receipt  therefor. 

Treasurer  apportion  consolidated  tax  and  make  report. — Sec.  868.  The  trea- 
surer of  each  county  shall,  on  or  before  the  tenth  day  of  each  month,  apportion  the 
consolidated  tax  of  each  civil  township  or  independent  school  district  in  his  county, 
collected  during  the  preceding  month,  among  the  several  funds  to  which  it  belongs, 
according  to  the  number  of  mills  levied  for  each  fund  contained  in  said  consolidated 
tax,  and  having  entered  the  amount  of  tax  for  each  fund,  including  other  taxes 
collected  during  the  preceding  month,  upon  his  cash  account,  he  shall  report  the 
amount  of  each  distinct  tax  to  the  county  auditor,  who  shall  charge  him  up  with  the 
same. 

Auditor  keep  accounts :  each  fund  kept  separate. — Sec.  869.  The  county 
auditor  shall  keep  full  and  complete  accounts  with  the  county  treasurer,  with  each 
separate  fund  or  tax  by  itself,  in  ench  of  which  accounts  he  shall  charge  him  with  the 
amounts  in  his  hands  at  opening  of  such  account,  whether  it  be  delinquent  taxes, 
notes,  cash,  or  other  assets  belonging  to  such  fund,  the  amount  of  each  tax  for  each 
year  when  the  tax  book  is  received  by  him,  and  all  additions  to  each  tax  or  fund, 
whether  by  additional  assessments,  interest  or  delinquent  taxes,  amount  received  for 
peddlers'  licenses  or  other  items,  and  shall  credit  the  treasurer  on  proper  vouchers,  for 
money  disbursed,  for  double  and  erroneous  assessments,  including  all  improper  and 
illegal  assessments,  the  correction  or  remission  of  which  causes  a  diminution  of  the 
tax,  and  for  unavailable  taxes,  or  such  as  have  been  pro])erly  and  legally  assessed,  but 
which  there  is  no  prospect  of  collecting. 


244  THE   TBEASURER. 

Treasurer  to  refund  taxes  when  directed  by  supervisors.— Sec.  870.  Tlie 
board  of  supervisors  shall  direct  the  treasurer  to  refund  to  the  tax-payer,  any  tax,  or 
any  portion  of  a  ta.v,  found  to  have  been  erroneously  or  illegally  exacted  or  paid, 
with  all  interest  and  costs  actually  paid  thereon,  and  in  case  any  real  property  subject 
to  taxation  shall  be  sold  for  the  payment  of  such  erroneous  tax,  interest  or  costs  as 
above  mentioned,  the  error  or  jrregularity  in  the  tax  may  at  any  time  be  corrected  as 
above  provided,  and  shall  not  affect  the  validity  of  the  sale,  or  the  right  or  title  con- 
veyed by  the  treasurer's  deed,  if  the  property  was  subject  to  taxation  for  any  of  the 
purposes  for  which  any  portion  of  the  taxes  for  which  the  land  was  sold  was  levied, 
and  the  taxes,  were  not  paid  before  the  sale  and  the  property  had  not  been  redeemed 
from  sale. 

TAX    SALE. 

When  and  how  made- — Sec.  871.  On  the  first  Monday  in  October  in  each  year, 
the  county  treasurer  is  required  to  offer  at  public  sale  at  his  office,  all  lands,  town  lots, 
or  other  real  property  on  which  taxes  of  any  description  for  the  preceding  year  or 
years  shall  remain  due  and  unpaid,  and  such  sale  shall  be  made  for  and  in  payment  of 
the  total  amount  of  taxes,  interests,  and  costs,  due  and  unpaid  on  such  real  prop- 
erty. 

Notice :  what  to  contain. — Sec.  872.  The  notice  to  be  given  of  such  sale  shall 
state  the  time  and  place  thereof,  and  contain  a  description  of  the  several  parcels  of 
real  property  to  be  sold  for  the  delinquent  taxes  of  the  preceding  year,  and  such  real 
property  as  has  not  been  advertised  for  the  taxes  of  previous  years,  and  on  which  the 
taxes  remain  due  and  delinquent,  and  the  amount  of  taxes  and  amount  of  intt  rests  and 
costs  against  each  tract,  and  the  name  of  the  owner,  when  known,  or  person,  if  any, 
to  whom  taxed.  •• 

How  published. — Sec.  873.  The  county  treasurer  shall  give  such  notice  by 
causing  the  same  to  be  published  once  in  each  week  for  three  successive  weeks,  the 
last  publication  to  be  at  least  one  week  prior  to  the  day  of  sale,  in  some  newspaper 
printed  in  such  county,  if  any  such  there  be,  or  if  not,  then  in  the  nearest  newspaper 
in  this  state  having  a  general  circulation  in  such  county;  and  also  by  causing  a  copy 
of  such  notice  to  be  posted  on  the  door  of  the  county  court  house  at  least  four  weeks 
before  the  day  of  sale.  But  no  newspaper  shall  be  selected  unless  it  has  two  hun- 
dred regular  weekly  subscribers,  and  has  been  regularly  printed  and  published  for  at 
least  three  months  preceding  the  fifteenth  of  September  of  said  year  in  the  same 
county,  and  has  had  at  least  twenty  actual  subscribers  in  the  county  wherein  the 
delinquent  property  is  situated,  for  at  least  three  months  preceding  the  fifteenth  of 
September  of  that  year.  And  in  all  cases  where  the  treasurer  may  doubt  the  qualifi- 
cations of  any  paper  as  above  fixed,  he  shall  require  proof  thereof  by  the  affidavit  of 
the  publisher. 

Cost  of  publication:  notice  filed. — Sec.  874.  TIu-  treasurer  shall  charge  and 
collect,  in  addition  to  the  taxes  and  interest,  a  sum  not  exceeding  twenty  cents  on 
each  tract  of  real  property  advertised  for  sale,  which  sum  shall  be  paid  into  the 
county  treasury,  and  the  county  shall  pay  the  costs  of  publication,  but  in  no  case 
shall  the  county  be  liable  for  more  than  the  amount  charged  to  the  delinquent  lands 
for  advertising,  and  if  the  treasurer  cannot  procure  the  publication  of  said  notice  for 
that  sum,  or,  if  for  any  other  reason  the  treasurer  is  unable  to  procure  the  publica- 
tion of  said  notice,  he  shall  post  up  written  notices  of  said  sale  in  four  of  the  most 
public  places  in  his  county  four  weeks  before  sale,  and  notice  so  given  shall  have  the 
same  effect  as  though  the  same  had  been  published  in  a  newspaper.  In  that  case  he 
shall,  before  making  such  sale,  file  in  the  office  of  the  auditor  of  his  county,  a  copy 


DUTY   RELATING   TO   TAXES.  245 

of  said  notice  with  his  certificate  indorsed  thereon,  setting  forth  that  said  notice  had 
been  posted  up  in  four  of  the  most  public  places  in  his  county  four  weeks  before  the 
sale,  which  certificate  shall  be  subscribed  by  him  and  sworn  to  before  said  auditor,  and 
shall  be  presumptive  evidence  of  the  facts  therein  stated. 

Hour  and  place  of  sale.— -Sec.  875.  The  county  treasurer  shall,  at  his  office,  on 
the  day  of  thebaic,  at  the  hour  of  ten  o'clock  in  the  forenoon,  oifer  for  sale,  sepa- 
rately, each  tract  or  parcel  of  real  property  advertised  for  sale,  on  which  the  taxes 
and  costs  shall  not  have  been  paid. 

Purchaser :  homestead  liable,— Sec.  8T6.  The  person  who  offers  to  pay  the 
amount  of  taxes  due  on  any  parcel  of  land,  or  town  lot,  for  the  smallest  portion  of 
tlie  same  is  to  be  considered  the  purchaser,  and  when  such  purchaser  shall  designate 
the  portion  of  any  tract  of  land  or  town  lot  for  which  he  will  pay  the  whole  amount 
of  taxes  assessed  against  any  such  tract  or  lot,  the  portion  thus  designated  shall,  in 
all  cases,  be  considered  an  undivided  portion.  In  all  cases  where  the  homestead  is 
listed  separately  as  a  homestead,  it  shall  be  liable  only  for  the  taxes  thereon. 

Sale  continued. — Sec.  877.  The  treasurer  shall  continue  the  sale  from  day  to  day 
as  long  as  there  are  bidders,  or  until  the  ta.xes  are  all  paid. 

Re-sale. — Sec.  878.  The  person  purchasing  any  parcel  or  part  thereof,  shall 
forthwith  pay  to  the  treasurer  the  amount  of  taxes  and  costs  charged  thereon,  and  on 
failure  to  do  so,  the  said  parcel  shall  at  once  again  be  offered  as  if  no  such  sale  had 
bern  made.  Such  payment  may  be  made  in  the  same  funds  receivable  by  law  in  pay- 
ment of  taxes. 

Owner  may  pay  hefore  sale. — Sec.  879.  Any  person  owning  or  claiming  lands, 
or  town  lots,  advertised  for  sale  as  aforesaid,  may  pay  to  the  county  treasurer,  at  any 
time  before  the  sale  thereof,  the  taxes  due  thereon,  with  interest,  cost  of  advertising, 
and  all  the  costs  which  may  have  accrued  up  to  the  time  of  such  payment. 

Letters  and  figures  used:  informality:  effect  of.— Sec.  880,  In  all  advertise- 
ments for  the  sale  of  real  property  for  taxes,  and  in  entries  required  to  be  made  by  the 
county  auditor,  treasurer,  or  other  officer,  letters  and  figures  may  be  used  as  they 
have  been  heretofore,  to  denote  townships,  ranges,  sections,  parts  of  sections,  lots, 
blocks,  date,  and  the  amount  of  taxes,  interest,  and  costs.  And  no  irregularity  or  infor- 
mality in  the  advertisement  shall  affect  in  any  manner  the  legality  of  the  sale,  or  the 
title  to  any  real  property  conveyed  by  the  treasurer's  deed  under  this  chapter,  but,  in 
all  cases,  the  provisions  of  this  chapter  shall  be  sufficient  notice  to  ownersof  the  sale 
of  their  property. 

Certificate  of  publication.— Sec.  881.  The  treasurer  shall  obtain  a  copy  of  said 
advertisement,  together  with  a  certificate  of  the  due  publication  thereof,  from  the 
printer  or  publisher  of  the  newspaper  in  which  the  same  shall  have  been  published, 
and  shall  file  the  same  in  the  office  of  the  county  auditor,  and  such  certificate  shall  be 
substantially  in  the  following  form  : 

I,  A  B,  publisher  (or  printer)  of  the  .  .  a  .  .  newspaper  printed  and  published 
in  the  county  of  .  .  ,  and  state  of  Iowa,  do  hereby  certify  that  the  foregoing  notice 
and  list  were  published  in  said  newspaper  once  in  each  week  for  three  successive 
weeks,  and  the  last  of  which  publications  was  made  on  .  .  day  of  .  .  ,  A  D  18  .  , 
and  that  copies  of  each  number  of  said  paper  in  which  said  notice  and  said  list  were 
published,  were  delivered  by  carrier  or  transmitted  by  mail  to  each  of  the  subscribers 
to  said  paper,  according  to  the  accustomed  mode  of  business  in  this  office. 

A  .    .    B  .    .  . 
Publisher  (or  printer)  of  the    .    . 


246  THE   TREASURER. 


I  ss. 


State  of  Iowa, 

....   County 

The  above  certification  of  publication  was  subscribed  and  sworn  to  before  me  by 
the  above  named  A  B,  who  is  personally  known  to  me  to  be  the  identical  j^erson 
described  therein,  on  the    .    .    day  of    .    .  ,  A.  D,   18  .    . 

C  .    .     D  .    .  . 
County  Auditor,    .    .    .   County,   Iowa. 

Auditor  to  attend  sales:  duty:  treasurer  to  keep  record.— Skc.  882.  The 
county  auditor  shall  attend  all  sales  of  real  properly  for  taxes  made  by  the  treasurer 
and  make  a  record  thereof  in  a  book  to  be  kept  by  him  for  that  purpose,  therein 
describing  the  several  parcels  of  real  property  on  which  the  taxes  and  costs  were  paid 
by  the  purchaser,  as  they  are  described  in  the  list  or  advertisement  on  file  in  his 
office,  stating  in  separate  columns  the  amount  as  obtained  from  the  treasurer's  ta.x 
list,  of  eacti  kind  of  tax,  interest,  and  costs  for  each  tract  or  lot,  how  much  and  what 
part  of  each  tract  or  lot  was  sold,  to  whom  sold,  and  date  of  sale.  The , 
treasurer  shall  also  keep  a  book  of  sales,  in  which,  at  the  time  of  sale,  he 
shall  make  the  same  records.  He  shall  also  note  in  the  tax-list,  opposite  the  descrip- 
tion of  the  property  sold,  the  fact  and  date  of  such  sale. 

Sale  adjourned. — Sec.  883.  When  all  the  parcels  of  real  property  advertised  for 
sale  shall  have  been  offered,  and  a  portion  thereof  shall  remain  unsold  for  want  of 
bidders,  the  treasurer  shall  adjourn  the  sale  to  some  day  not  exceeding  two  months 
from  the  time  of  adjournment,  due  notice  of  which  day  shall  be  given  at  the  time  of 
adournment,  and  also  by  keeping  a  notice  thereof  posted  in  a  conspicuous  place  in 
tht'  treasurer's  office;  but  no  further  advertisement  shall  be  necessary.  On  the  day 
fixed  for  the  re-opening  of  the  sr.le,  the  same  proceedings  shall  be  had  as  provided 
hereby  for 'he  sale  commencing  on  the  first  Monday  of  October.  And  further 
adjournments  shall  be  made  from  time  to  time,  not  exceeding  two  months,  and  the 
sales  shall  be  thus  continued  until  the  next  regular  annual  sale,  or  until  all  the  taxes 
shall  have  been  paid. 

Penalty  on  auditor  and  treasurer  for  failure  of  duty. — Sec.  884.  If  any 
treasurer  or  auditor  shall  fail  to  attend  any  sale  of  lands  as  required  by  this  chapter, 
either  in  person  or  by  eompetent  deputy,  he  shall  be  liable  to  a  fine  of  not  less  than 
fifty  nor  more  thaa  three  hundred  dollars,  to  be  recovered  by  an  action  in  the  district 
court  against  the  treasurer  or  auditior,  as  the  case  may  be,  and  his  bondsmen.  And 
if  such  offiaer  or  deputy  shall  sell,  or  assist  in  selling  any  real  property,  knowing  the 
same  to  be  not  subject  to  taxation,  or  that  the  ta.xes  for  which  the  same  is  sold  have 
been  paid,  or  shall  knowingly  and  willfully  sell,  or  assist  in  selling,  any  real  property 
for  payment  of  taxes  to  defraud  the  owner  of  such  real  property,  or  shall  knowingly 
and  willfully  execateadeed  for  property  so  sold,  he  shall  be  liable  to  a  fine  of  not  less 
than  one  thousand  nor  more  than  three  thousand  dollars,  or  to  imprisonment  not 
exceeding  one  year,  or  to  both  fine  and  imprisonment,  and  to  pay  the  injured  party 
all  damages  sustained  by  any  such  wrongful  act,  and  all  such  sales  shall  be  void. 

Sec.  885.  If  any  county  treasurer  or  auditor  shall  hereafter  be,  either  directly  or 
indirectly,  concerned  in  the  purchase  of  any  real  property  sold  for  the  paymtnt  of 
taxes,  he  shall  be  liable  to  a  penalty  of  not  more  than  one  thousand  dollars,  to  be 
recovered  in  an  action  in  the  district  court,  brought  in  the  name  of  the  county  against 
such  treasurer  or  auditor,  as  the  case  may  be,  and  his  bondsmen ;  and  all  such  sales 
shall  be  void. 

Sale  at  any  other  time. — Sec.  886.  If,  from  neglect  of  officers  to  make  returns, 
or  from  any  other  good  cause,  real  property  cannot  be  duly  advertised  and  offered 
for  sale  on  the  first  Monday  of  October,  the  treasurer  shall  make  the  sale  on  the  first 


DUTY    RELATING    TO    TAXES.  247 

Monday  of  the  next  succeeding  months  in  which  it  can  be  made,  allowing  time  for 
the  publication  as  provided  in  this  chapter. 

CERTIFICATE    OP    PURCHASE. 

How  made:  what  contain.— Sec.  887.  The  county  treasurer  shall  make  out,  sign, 
and  deliver  to  the  purchaser  of  any  real  property  sold  for  the  payment  of  taxes  as 
aforesaid,  a  certificate  of  purchase,  describing  the  property  on  which  the  taxes  and 
costs  were  paid  by  the  purchaser,  as  the  same  was  described  in  the  records  of  sales, 
and  also  how  much  and  what  part  of  each  tract  or  lot  was  sold,  and  stating  the 
amount  of  each  kind  of  tax,  interest,  and  costs  for  each  tract  or  lot  for  which  the 
same  was  sold,  as  described  in  the  records  of  sales,  and  that  payment  had  been  made 
therefor.  If  any  person  shall  become  the  purchaser  of  more  than  one  parcel  of 
property,  he  may  have  the  whole  included  in  one  certificate,  but  each  parcel  shall  be 
separately  described. 

Certificate  assignable.— Sec.  888.  The  certificate  of  purchase  shall  be  assign- 
able by  indorsement,  and  an  assignment  thereof  shall  vest  in  the  assignee,  or  his  legal 
representative,  all  the  right  and  title  of  the  original  purchaser;  and  the  statement  in 
the  treasurer's  deed  of  the  fact  of  the  assignment  shall  be  presumptive  evidence  of 
such  assignment.  In  case  said  certificate  is  assigned,  then  the  assignment  of  said 
certificate  shall  be  placed  on  record  in  the  office  of  the  county  treasurer  in  the  regis- 
ter of  tax  sales. 

When  purchaser  pays  subsequent  taxes.— Sec.  889.  The  county  treasurer 
shall  also  make  out,  sign,  and  deliver  to  the  purchaser  of  any  real  property  sold  for 
taxes  aforesaid,  duplicate  receipts  for  any  taxes,  interest,  and  costs,  paid  by  said 
purchaser,  after  the  date  of  said  purchase  for  any  subsequent  year  or  years,  one  of 
which  receipts  said  purchaser  shall  present  to  the  county  auditor,  to  be  by  him  filed 
in  his  office,  and  a  memorandum  thereof  entered  on  the  register  of  sales.  And  if  he 
neglect  to  file  such  duplicate  receipt  with  the  auditor  before  the  redemption,  such  tax 
shall  not  be  alien  upon  the  land,  and  the  person  paying  such  tax  shall  not  be  entitled 
to  recover  the  same  of  the  owner  of  such  real  estate. 

REDEMPTION. 

How  effected. — Sec.  890.  Real  property,  hereafter  sold  under  the  provisions  of 
this  chapter,  may  be  redeemed  at  any  time  before  the  right  of  redemption  is  cut  off, 
as  herein  after  provided,  by  the  payment  to  the  county  auditor  of  the  proper  county, 
to  be  held  by  him  subject  to  the  order  of  the  purchaser,  of  the  amount  for  which  the 
same  was  sold  and  twenty  per  centum  of  such  amount  immediately  added  as  a  pen- 
alty, with  ten  per  cent,  interest  per  annum  on  the  whole  amount  thus  made  from  the 
day  of  sale,  and  also  the  amount  of  all  taxes,  interest,  and  costs  paid  for  any  subse- 
quent year  or  years,  and  a  similar  penalty  of  twenty  per  centum  added  as  before  on 
the  amount  of  the  payment  for  each  subsequent  year,  with  ten  per  cent,  interest  per 
annum  on  the  whole  of  such  amount  or  amounts  from  the  day  or  days  of  payment, 
unless  such  subsequent  taxes  shall  have  been  paid  by  the  person  for  whose  benefit 
the  redemption  is  made,  which  fact  may  be  shown  by  the  treasurer's  receipt ;  and 
provided  further,  that  such  penalty  for  the  non-payment  of  the  taxes  of  any  such 
subsequent  year  or  years  shall  not  atlacli,  unless  such  subsequent  tax  or  taxes  shall 
have  remained  unpaid  until  the  first  day  of  March  after  they  become  due,  so  tiuit 
they  have  become  delinquent,  nor  shall  any  of  said  penalties  apply  in  the  cases  men- 
tioned in  the  last  clause  of  section  eight  hundred  and  sixty-six  of  this  chapter. 

Certificate  of  redemption. — Sec.  891.  The  county  auditor  shall,  upon  applica- 
tion of  any  party  to  redeem  any  real  property  sold  under  the  provisions  of  this  chapter. 


348  THE   TEEASURER. 

and  being  satisfied  that  such  party  has  a  right  to  redeem  the  same,  and  upon  the 
payment  of  the  proper  amount,  issue  to  such  party  a  certificate  of  redemption, 
setting  forth  the  facts  of  the  sale  substantially  as  contained  in  the  certificate  of  sale. 
the  date  of  the  redemption,  the  amount  paid,  and  by  whom  redeemed,  and  he  shall 
make  the  proper  entries  in  the  book  of  sales  in  his  office,  and  shall  immediately  give 
notice  of  such  redemption  to  the  county  treasurer.  Such  certificate  of  redemption 
shall  then  be  presented  to  the  treasurer,  who  shall  countersign  the  same  and  make 
the  proper  entries  in  the  books  of  his  office,  and  no  certificate  of  redemption  shall  be 
held  as  evidence  of  such  redemption  without  such  signature  of  the  treasurer. 

Minors  and  lunatics. — Sec.  892.  If  real  property  of  any  minor  or  lunatic  is 
sold  for  taxes,  the  same  may  be  redeemed  at  any  time  within  one  year  after  such 
disability  is  removed,  in  the  manner  specified  in  the  following  section,  or  such  redemp- 
tion may  be  made  by  the  guardian  or  legal  representative  under  section  eight  hun- 
dred and  ninety,  at  any  time  before  the  delivery  of  the  deed. 

How  redeemed  after  deed  made. — Sec.  893.  Any  person  entitled  to  redeem  lands 
sold  for  taxes  after  the  delivery  of  the  deed,  shall  redeem  the  same  by  an  equitable 
action  in  a  court  of  record,  in  which  all  persons  claiming  an  interest  in  the  land 
derived  from  the  ta.x  sale,  as  shown  by  the  record,  shall  be  made  defendants,  and  the 
courts  shall  determine  the  rights,  claims,  and  interest  of  the  several  parties,  including 
liens  for  taxes  and  claims  for  improvements  made  on  the  land  by  the  person  claiming 
under  the  tax  title.  And  no  person  shall  be  allowed  to  redeem  land  sold  for  taxes  in 
any  other  manner  after  the  service  of  the  notice  provided  for  by  the  next  section,  and 
the  execution  and  delivery  of  the  treasurer's  deed. 

EXECUTION    OF    DEED — NOTICE    GIVEN. 

Before  deed  is  made  notice  to  be  given:  what  contain:  how  served.— Sec.  894. 
After  the  expiration  of  two  years  and  nine  months  after  the  date  of  sale  of  the  land 
for  taxes,  the  lawful  holder  of  the  certificate  of  purchase  may  cause  to  be  served  upon 
the  person  in  possession  of  such  land  or  town  lot,  and  also  upon  the  person  in  whose 
name  the  same  is  taxed,  if  such  person  resides  in  the  county  where  the  land  is  situated, 
in  the  manner  provided  by  law  for  the  service  of  original  notices,  a  notice  signed  by 
him,  his  agent,  or  attorney,  stating  the  date  of  sale,  the  description  of  the  land  or 
town  lot  sold,  the  name  of  the  purchaser,  and  that  the  right  of  redemption  will  expire 
and  a  deed  for  said  land  be  made,  unless  redemption  from  such  sale  be  made  within 
ninety  days  from  the  completed  service  thereof.  Service  may  be  made  upon  non- 
residents of  the  county  by  publishing  the  same  three  times  in  some  newspaper  printed 
in  said  county,  and  if  no  newspaper  is  printed  in  said  county,  then  in  the  nearest 
newspaper  published  in  this  state.  But  any  such  non-resident  may  file  with  the  trea- 
surer of  the  county  a  written  appointment  of  some  resident  of  the  county  where  his 
lands  or  lots  are  situated  as  agent  upon  whom  service  shall  be  made  and  in  such  case, 
personal  service  of  said  notice  shall  be  made  upon  said  agent.  Service  shall  be 
deemed  completed  when  an  affidavit  of  the  service  of  said  notice,  and  of  the  particu- 
lar mode  thereof,  duly  signed  and  verified  by  the  holder  of  the  certificate  of  purchase, 
his  agent,  or  attorney,  shall  have  been  filed  with  the  treasurer  authorized  to  execute 
the  tax-deed.  Such  affidavit  shall  be  filed  by  said  treasurer,  and  entered  upon  the 
records  of  his  office,  and  said  record  or  affidavit  shall  be  presumptive  evidence  of  the 
completed  ser\-ice  of  notice  hereiri  required,  and,  until  ninety  days  after  the  service 
of  said  notice,  the  right  of  redemption  from  such  sale  shall  not  expire.  Any  person 
swearing  falsely  to  any  fact  or  statement  contained  in  said  affidavit,  shall  be  deemed 
guilty  of  perjury  and  punished  accordingly.     The  cost  of  serving  said  notice,  whether 


DUTY  RELATING  TO  TAXES.  249 

by  publication  or  othenvise,  together  with  the  cost  of  the  affidavit,  shall  be  added  to 
the  redemption  money. 

When  deed  shall  be  made. — Sec.  895.  Immediately  after  the  e.xpiration  of 
ninety  days  from  the  date  of  service  of  the  v^ritten  notice  hereinbefore  provided,  the 
treasurer  then  in  office  shall  make  out  a  deed  for  each  lot  or  parcel  of  land  sold  and 
remaining  unredeemed,  and  deliver  the  same  to  the  purchaser  upon  the  return  of  the 
certificate  of  purchase.  The  treasurer  shall  demand  twenty-five  cents  for  each  deed 
made  by  him  on  such  sales,  but  any  number  of  parcels  of  land  bought  by  one  person 
may  be  included  in  one  deed,  if  desired  by  the  purchaser. 

Form  of. — Sec.  896.  Deeds  executed  by  the  treasurer  shall  be  substantially  in 
the  following  form  : 

Know  all  men  by  these  presents,  that  whereas  the  following  described  real  prop- 
erty, viz  ;  [here  follows  the  description],  situated  in  the  county  of  ...  ,  and  State 
of  Iowa,  was  subject  to  taxation  for  the  year  (or  years)  A.  D.  .  .  :  and  whereas 
the  taxes  assessed  upon  said  real  property  for  the  year  (or  years)  aforesaid  remained 
due  and  unpaid  at  the  date  of  the  sale  hereinafter  named ;  and  whereas,  the  treasurer 
of  said  county  did,  on  the  .  .  .  day  of  .  .  .  ,  A.  D.  18  .  .  ,  by  virtue  of  the 
authority  in  him  vested  by  law,  at  (an  adjourment  of)  the  sale  begun  and  publicly 
held  on  the  first  Monday  of  .  .  .  ,  A.  D.  18  .  .  ,  expose  to  public  sale  at  the  office 
of  the  county  treasurer  in  the  county  aforesaid,  in  substantial  conformity  with  all 
the  requisitions  of  the  statute  in  such  case  made  and  provided,  the  real  property 
above  described,  for  the  payment  of  the  taxes,  interest  and  costs  then  due  and 
remaining  unpaid  on  said  property;  and  whereas,  at  the  time  and  place  aforesaid,  A 
B,  of  the  county  of    .    .    .  ,  and  State  of    ...  ,  having  offered  to  pay  the  sum  of 

.  .  .  dollars  and  .  .  .  cents,  being  the  whole  amount  of  taxes,  interest,  and 
costs  then  due  and  remaining  unpaid  on  said  property,  for  [here  follows  the  descrip- 
tion of  the  property  sold]  which  was  the  least  quantity  bid  for ;  and  payment  of  said 
sum  having  been  by  him  made  to  said  treasurer,  said  property  was  stricken  off  to 
him  at  that  price;  and  whereas,  the  said  A  B  did,  on  the  .  .  .  day  of  .... 
A.  D.  18  .  .  ,  duly  assign  the  certificate  of  the  sale  of  the  property  as  aforesaid,  and 
all  his  right,  title,  and  interest  to  said  property  to  E  F,  of  the  county  of    ...  ,  and 

state  of  ...   ;  and  whereas,  by  the  affidavit  of filed  in  said  treasurer's 

office  on  the  .  .  .  day  of  .  .  .  ,  A.  D.  .  .  .  ,  it  appears  that  due  notice  has  been 
given  more  than  ninety  days  before  the  execution  of  these  presents  to    .    .     .    .    and 

of  the  expiration  of  the  time  of  redemption  allowed  by  law ;  and  whereas, 

three  years  have  elapsed  since  the  date  of  said  sale,  and  said  property  has  not  been 
redeemed  therefrom  as  provided  for  by  law. 

Now,  therefore,  I,  C  D,  treasurer  of  the  county  aforesaid,  for  and  in  consideration 
of  said  sum  to  the  treasurer  paid  as  aforesaid,  and  by  virtue  of  the  statute  in  such 
case  made  and  provided,  have  granted,  bargained,  and  sold,  and  by  these  presents  do 
grant,  bargain,  and  sell  unto  the  said  A  B  (or  E  F),  his  heirs  and  assigns,  the  real 
property  last  hereinbefore  described,  to  have  and  to  hold  unto  him  the  said  A  B  (or 
E  F),  his  heirs  and  assigns  forever:  subject,  however,  to  all  the  rights  of  redemption 
provided  bylaw.  In  witness  whereof,  I,  C  D,  treasurer  as  aforesaid,  by  virtue 
of  the  authority  aforesaid,  have  hereunto  subscribed  my  name  on  this    .    .    .    day  of 

.    .    .  ,  18  .    .  . 

State  of  Iowa,      ) 
.  .  .  County.  |   "" 

I  hereby  certify  that  before  me  ....  in  and  for  said  county,  personally 
appeared  the  above  named  C  D,  treasurer  of  said  county,  personally  known  to  me  to 
be  the  treasurer  of  said  county  at  the  date  of  the  execution  of  the  above  conveyance, 


350  THE   THEASURER. 

and  to  be  the  identical  person  whose  name  is  affixed  to  and  who  executed  the  above 
conveyance  as  treasurer  of  said  county,  and  acknowledged  the  execution  of  the  same 
to  be  his  voluntary  act  and  deed  as  treasurer  of  said  county,  for  the  purposes  therein 
expressed. 

Given  under  my  hand  [and  seal]  this    ,    .    day  of    .    .    A.  D,  18  . 


EFFECT    OF    DEED. 

Vests  title  in  purchaser.— Sec.  897.  The  deed  shall  be  signed  by  the  treasurer 
in  his  official  capacity,  and  acknowledged  by  him  before  some  officer  authorized  to 
take  acknowledgments  of  deeds;  and,  when  substantially  thus  executed  and 
recorded  in  the  proper  record  of  titles  to  leal  estate,  shall  vest  in  the  purchaser  all  the 
right,  title,  interest,  and  estate  of  the  former  owner  in  and  to  the  land  conveyed,  and 
also  all  the  right,  title,  interest,  and  claim  of  the  state  and  county  thereto,  and  shall 
be  presumptive  evidence  in  all  the  courts  of  this  state,  in  all  controversies  and  suits  in 
relation  to  the  rights  of  the  purchaser,  his  heirs  or  assigns,  to  the  land  thereby  con- 
veyed, of  the  following  facts  : 

1.  That  the  real  property  conveyed  was  subject  to  taxation  for  the  year  or  years 
stated  in  the  deed ; 

2.  That  the  taxes  were  not  paid  at  any  time  before  the  .^ale ; 

3.  That  the  real  property  conveyed  had  not  been  redeemed  from  the  sale  at  the 
date  of  the  deed ; 

4.  That  the  property  had  been  listed  and  assessed ; 

5.  That  the  taxes  were  levied  according  to  law; 

6.  That  the  property  was  duly  advertised  for  sale ; 

7.  That  the  property  was  sold  for  taxes  as  stated  in  the  deed.  And  it  shall  be 
conclusive  evidence  of  the  following  facts : 

1.  That  the  manner  in  which  the  listing,  assessment,  levy,  notice,  and  sale  were 
conducted  was  in  all  respects  as  the  law  directed; 

2.  That  the  grantee  named  in  the  deed  was  the  purchaser; 

3.  That  all  the  pre-requisites  of  the  law  were  complied  with  by  all  the  officers  who 
had,  or  whose  duty  it  was  to  have  had,  any  part  or  action  in  any  transaction  relating 
to  or  affecting  the  title  conveyed,  or  purporting  to  be  conveyed,  by  the  deed,  from 
the  listing  and  valuation  of  the  property  up  to  the  execution  of  the  deed,  both  inclu- 
sive, and  that  all  things  whatsoever  required  by  law  to  make  a  good  and  valid  sale, 
and  to  vest  the  title  in  the  purchaser,  were  done,  except  in  regard  to  the  points 
named  in  this  section,  wherein  the  deed  shall  be  presumptive  evidence  only. 

And  in  all  controversies  and  suits  involving  the  title  to  real  property  claimed  and 
held  under  and  by  virtue  of  a  deed  executed  substantially  as  aforesaid  by  the  treas- 
urer, the  person  claiming  title  adverse  to  the  title  conveyed  by  such  deed,  shall  be 
required  to  prove,  in  order  to  defeat  the  said  title,  either  that  the  said  real  property 
was  not  subject  to  taxation  for  the  year  or  years  named  in  the  deed,  that  the  taxes 
had  been  paid  before  the  sale,  that  the  property  had  been  redeemed  from  the  sale 
according  to  the  provisions  of  this  chapter,  and  that  such  redemption  was  had  or 
made  for  the  use  and  benefit  of  persons  having  the  right  of  redemption  under  the 
laws  of  this  state,  or,  that  there  had  been  an  entire  omission  to  list  or  assess  the  prop- 
erty, or  to  levy  the  taxes,  or  to  gK^e  notice  of  the  sale,  or  to  sell  the  property :  but  no 
person  shall  be  permitted  to  question  the  title  acquired  by  a  treasurer's  deed  without 
first  showing  that  he,  or  the  person  under  whom  he  claims  title,  had  title  to  the  prop- 
erty at  the  time  of  the  sale,  or  that  the  title  was  obtained  from  the  United  States  or 
this  state  after  the  sale,  and  that  all  taxes  due  upon  the  property  have  been  paid  by 


DUTY    RELATING    TO    TAXES.  251' 

such  person,  or  the  person  under  whom  he  claims  title  as  aforesaid;  provided,  that  in 
any  case  where  a  person  had  paid  his  taxes,  and  through  mistake  in  the  entry  made 
in  the  treasurer's  books  or  in  the  receipt,  the  land  upon  which  the  taxes  were  paid 
was  afterwards  sold,  the  treasurer's  deed  shall  not  convey  the  title;  provided  further, 
that  in  all  cases  where  the  owner  of  lands  sold  for  taxes  shall  resist  the  validity  of 
such  tax  title,  such  owner  may  prove  fraud  committed  by  the  officer  selling  the  same, 
or  in  the  purchaser,  to  defeat  the  same,  and  if  fraud  is  so  established  such  sale  and 
title  shall  be  void. 

Previous  sales  not  affected  by  Code. — Sec.  898.  The  provisions  of  this  title 
shall  not  affect  sales  heretofore  made,  or  tax  deeds  given  in  pursuance  of  sales  made 
before  the  taking  effect  of  this  code. 

SALES     WRONGFULLY     MADE. 

County  to  hold  purchaser  harmless. — Sec.  899.  When,  by  mistake  or  wrong- 
ful act  of  the  treasurer,  land  has  been  sold  on  which  no  tax  was  due  at  the  time,  or 
whenever  land  is  sold  in  consequence  of  error  in  describing  such  land  in  the  tax 
receipt,  the  county  is  to  hold  the  purchaser  harmless  by  paying  him  the  amount  of 
principal  and  interest  and  costs  to  which  he  would  have  been  entitled  had  the  land 
been  rightfully  sold,  and  the  treasurer  and  his  bondsmen  will  be  liable  to  the  county 
to  the  amount  of  his  official  bond;  or  the  purchaser,  or  his  assignee,  may  recover 
directly  of  the  treasurer,  in  an  action  brought  to  recover  the  same  in  any  court  having 
jurisdiction  of  the  amount,  and  judgment  shall  be  against  him  and  his  bondsmen; 
but  the  treasurer  or  his  bondsmen  shall  be  liable  only  for  his  own  or  his  deputies' 
acts. 

Interest  acquired  by  purchaser  in  school  or  university  land. — Sec.  900. 
Whenever  any  school  or  university  land,  bought  on  a  credit,  is  sold  for  taxes,  the 
purchaser  at  such  tax  sale  shall  only  acquire  the  interest  of  the  original  purchaser  in 
such  lands,  and  no  sale  of  any  such  lands  for  taxes  shall  prejudice  the  rights  the  state 
or  university  therein,  or  preclude  the  recovery  of  the  purchase  money  or  interest  due 
thereon  ;  and  in  all  cases  where  real  estate  is  mortgaged  or  otherwise  encumbered  to 
the  school  or  university  fund,  the  interest  of  the  person  who  holds  the  fee  shall  alone 
be  sold  for  taxes,  and  in  no  case  shall  the  lien  or  interest  of  the  state  be  affected  by 
any  sale  oi  such  encumbered  real  estate  made  for  taxes. 

When  land  not  subject  to  taxation  is  sold. — Sec.  901.  Whenever  it  shall  be 
made  to  appear  to  the  .satisfaction  of  the  county  treasurer,  either  before  the  execu- 
tion of  a  deed  for  real  property  sold  for  taxes,  or  if  the  deed  be  returned  by  the  pur- 
chaser, that  any  tract  or  lot  was  sold  which  was  not  subject  to  taxation,  or  upon 
which  the  taxes  had  been  paid  previous  to  the  sale,  he  shall  make  an  entry  opposite 
such  tract  or  lot  on  the  record  of  sales,  that  the  same  was  erroneously  sold,  and  such 
entry  shall  be  evidence  of  the  fact  therein  stated.  And  in  such  cases  the  purchase 
money  shall  be  refunded  to  the  purchaser  as  provided  by  this  chapter. 
t 

LIMITATIONS    OF    ACTIONS. 

■When  action  must  be  brought. — Sec.  902.  No  action  for  the  recovery  of  real 
propiTly  s<jld  {nx  the  non-payment  of  taxes  shall  lie,  unless  the  same  be  brought 
within  five  years  after  the  treasurer's  deed  is  executed  and  recorded  as  above  pro- 
vided; provided,  that  where  the  owner  of  such  real  j)ropcrty  sold  as  aforesaid,  sii.iil, 
at  the  time  of  such  sale  be  a  minor  or  insane,  or  convict  in  the  penitentiary,  five  years 
after  such  disability  shall  be  removed  shall  he  allowed  such  person,  iiis  heirs  or  legal 
representatives  to  bring  their  action. 


252  THE   TREASURBE. 

Acts  of  of&cers  in  fact  valid. — Skc.  903.  In  all  suits  and  controversies  involving 
the  question  of  title  to  real  property  held  under  and  by  virtue  of  a  treasurer's  deed, 
all  acts  of  assessors,  treasurers,  auditors,  supervisors,  and  other  olficers  de  facto 
shall  be  doomed  and  construoil  to  he  of  the  same  validity  as  acts  of  officers  de  jure. 

When  assessed  to  wrong  person.— Sec.  904.  No  sale  of  real  property  for 
ta.\es  shall  be  considered  invalid  on  account  of  the  same  having  been  charged  in 
any  other  name  than  that  of  the  rightful  owner,  if  the  said  property  be  in  other  respects 
sufficiontly  described. 

Certified  copies  of  books  evidence. — Sec;.  90.5.  The  books  and  records  belong- 
ing to  the  offices  of  the  county  auditor  and  county  treasurer,  or  copies  thereof, 
properly  certified,  shall  be  deemed  sufficieut  evidence  to  prove  the  sale  of 
any  real  property  for  taxes,  the  redemption  thereof,  or  the  payment  of  ta.xes 
thereon. 

PEDDLERS. 

Amount  of  tax. — Sec.  906.  A  tax  for  state  purposes  shall  be  levied  upon  ped- 
dlers of  merchandise  not  manufactured  in  this  state,  for  a  license  to  peddle  through- 
out the  state  for  one  year  as  follows :  upon  each  peddler  of  watches  or  jewelry,  or 
either  of  them,  thirty  dollars;  upon  each  peddler  of  clocks,  fifty  dollars;  upon  each 
peddler  of  dry  goods,  fancy  articles,  notions,  or  patent  medicines,  as  follows  :  upon 
each  peddler  thereof,  ten  dollars;  upon  each  peddler  who  pursues  his  occupation 
with  a  vehicle  drawn  by  one  animal,  twenty-five  dollars;  if  drawn  by  two,  and  less 
than  four,  fifty  dollars:  if  drawn  by  four  or  more  anim.als,  seventy-five  dollars. 

Wholesale  dealers  exempt. — The  foregoing  section  was 
amended  by  the  15th  General  Assembly,  Sess.  Laws  187-i,  Chap. 
62,  as  follows: 

"  Provided,  however.  That  nothing  in  this  section  shall  apply  to  wholesale  dealers  in 
any  of  the  above  enumerated  articles,  who  use  wagons  for  the  delivery  of  goods  sold 
at  wholesale  prices  and  by  the  box  or  package." 

License:  how  obtained. — Sec.  907.  Such  license  may  be  obtained  from  the  audi- 
tor of  the  county  upon  p.iying  the  proper  tax  to  the  treasurer  thereof,  and  may  issue 
for  a  less  period  than  one  year  for  the  proportionate  amount  of  tax,  and  all  such 
licenses  shall  state  the  date  of  the  expiration  of  the  same  ;  and  any  person  so  ped- 
dling without  a  license,  or  after  the  expiration  of  his  license,  is  guilty  of  a  misde- 
meanor, and  the  person  actually  peddling  is  liable,  whether  he  be  the  owner  of  the 
goods  or  not.  Upon  conviction  of  peddlmg  without  a  license  as  aforesaid,  the 
offender  shall  forfeit  and  pay  to  the  county  treasurer,  in  addition  to  the  fine  imposed 
upon  him  for  the  misdemeanor,  double  the  amount  of  license  for  one  year  as  fixed 
by  section  nine  hundred  and  six  of  this  chapter. 

PROTISION"S    FOR   THE    SECURITY    OF    THE    REVEXUE. 

County  responsible  for  State  tax.— Sec.  908.  Each  county  is 'responsible  to 
the  state  for  the  full  amount  of  tax  levied  for  state  purposes,  excepting  such  amounts 
as  are  certified  to  be  unavailable,  double,  or  erroneous  assessments,  as  hereinafter 
provided. 

"When  treasurer  is  defaulter. — Sec.  909.  If  any  county  treasurer  prove  to  be  a 
defaulter  to  any  amount  of  state  revenue,  such  amount  shall  be  made  up  to  the 
state  within  the  next  three  coming  years  by  additional  levies,  in  such  manner  as  to 
annual  amounts  as  the  board  of  supervisors  may  direct.  In  such  cases  the  county 
can  have  recourse  to  the  official  bond  of  the  treasurer  for  indemnity. 


DUTY  RELATING  TO  TAXES.  253 

Interest  on  warrants:  how  receipted. — Sec.  910.  Wlien  interest  is  due  and 
allowed  by  the  treasurer  of  any  county,  or  the  state  treasurer,  on  the  redemption  of 
auditor's  warrants,  or  county  warrants,  the  same  shall  be  receipted  on  the  warrants 
by  the  holder  of  the  same,  with  the  date  of  the  payment,  and  no  interest  shall  be 
allowed  by  the  auditor  of  state  or  board  of  supervisors,  except  such  as  is  thus 
receipted. 

Penalty  for  discounting  warrants. — Sec.  911.  If  the  state  treasurer,  or  any 
county  treasurer,  discount  auditor's  warrants  at  less  than  the  amount  due  thereon, 
either  directly  or  indirectly,  or  through  third  persons,  they  shall  be  liable  to  a  fine  not 
exceeding  one  thousand  dollars,  to  be  prosecuted  as  other  fines. 

Penalty  for  loaning  public  money. — Sec.  812.  County  treasurers  shall  be 
liable  to  a  like  fine  for  loaning  out,  or  in  any  manner  using  for  private  purposes,  state 
or  county  funds  in  their  hands,  and  the  state  treasurer  shall  be  liable  to  a  fine  of  not 
more  than  ten  thousand  dollars  for  a  like  misdemeanor,  to  be  prosecuted  by  the 
attorney-general  in  the  name  of  the  state. 

PAYMENTS    BY    COUNTY    TREASURER. 

Supervisors  to  settle  with  treasurer. — Sec.  91.3.  At  their  regular  meetings  in 
January  and  June  of  each  year,  the  board  of  supervisors  shall  make  a  full  and  com- 
plete settlement  with  the  county  treasurer,  and  they  shall  make  and  certify  to  the 
auditor  of  state,  all  credits  to  the  treasurer  for  double  or  erroneous  assessments,  and 
unavailable  taxes,  also  all  dues  for  state  revenue,  interest,  or  delinquent  taxes,  sales 
of  land,  peddler's  licen  es,  and  other  dues,  if  any;  also  the  amounts  collected  for 
these  several  items,  and  revenues  still  delinquent,  each  year  to  itself.  Said  reports 
shall  be  forwarded  by  mail. 

When,  and  how  payments  made  to  treasurer  of  state. — Sec.  914.  The  treas- 
urer of  each  county  shall,  on  or  before  the  fifteenth  day  of  each  month,  prepare  a 
sworn  statement  of  the  amount  of  money  in  his  hands  on  the  first  day  of  that  month 
belonging  to  the  state  treasury,  and  forward  the  same  by  mail  to  the  auditor  of  state, 
and  he  shall,  each  year,  unless  otherwise  directed  by  the  state  auditor,  pay  into  the 
state  treasury,  on  or  before  the  fifteenth  day  of  March,  all  the  money  due  the  state 
remaining  in  his  hands  on  the  first  day  of  March,  and  on  or  Ipefore  the  fifteenth  day 
of  November,  all  the  money  due  the  state  remaining  in  his  hands  on  the  first  day  of 
November;  he  shall  also,  at  any  time  when  directed  by  the  auditor  of  state,  forth- 
with pay  into  the  state  treasury,  or  to  the  treasurer  of  any  county,  or  to  any  bank 
incorporated  under  the  laws  of  this  state,  or  any  national  bank  in  this  state,  any  or 
all  the  money  due  the  state  and  remaining  in  his  hands.  In  case  the  treasurer  of  any 
county  shall  fail  to  prepare  and  forward  the  statement  required  in  this  section,  he. 
shall  forfeit  and  pay  for  each  and  every  failure  a  sum  not  less  than  one  hundred  nor 
more  than  five  hundred  dollars,  to  be  recovered  in  an  action  brought  m  the  name  of 
the  state  auditor,  against  him  and  his  bondsmen,  in  any  court  of  record. 

■When  payments  made  through  banks.— Sec.  915.  The  state  auditor  may 
require  any  county  treasurer  to  inalic  his  payment  through  any  other  county  treas- 
urer, or  through  any  bank  chartered  by  the  laws  of  this  st.ate,  or  any  national  bank 
in  this  state;  but  no  charge  shall  be  made  against  the  state  by  said  bank  on  said 
amounts  to  exceed  one-fourth  of  one  per  cent,  for  transportation;  and  any  payments 
made  in  pursuance  of  such  requirements  by  the  auditor  shall  be  a  release  to  the 
county  of  its  liaijilitics  to  the  amount  so  [taid. 

Duty  of  auditor  of  state  and  supervisors. — Sec.  91(5.  The  state  auditor  shall 
make  and  transmit  to  each  county  auditor,  on  the  first  day  or  May  of  each  year,  a 
statement  of  ihn  county  treasurer's  account  with  the  state  treasurer,  which  account 


254  THE   TREASURER. 

shall  be  submitted  by  said  auditor  to  the  board  of  supervisors  at  their  next  meeting 
and  if  they  find  the  same  to  be  incorrect  in  any  particular,  they  shall  forthwitli  certify 
the  facts  in  relation  to  the  same  to  the  auditor  of  state. 

Treasurer  to  settle  with  supervisors. — Sec.  017.  When  a  county  treasurer 
goes  out  of  office,  he  shall  make  a  full  and  complete  settlement  with  the  board  of 
supervisors,  and  deliver  up  all  books,  papers,  moneys,  and  all  other  property  apper- 
taining to  the  office,  to  his  successor,  taking  his  receipt  therefor.  Tlie  board  of 
supervisors  shall  make  a  statement,  so  far  as  state  dues  are  concerned,  to  the  auditor 
of  state,  showing  all  charges  against  the  treasurer  during  his  term  of  office,  and  all 
credits  made,  the  delinquent  taxes  and  other  unfinished  business  charged  over  to  his 
successor,  and  the  amount  of  money  paid  over  to  his  successor,  showing  to  what  year' 
and  to  what  account  the  amount  so  paid  over  belongs.  They  shall  also  see  that  the 
books  of  the  treasurer  are  correctly  balanced  before  pas-^ing  into  the  poss-^ssion  and 
control  of  the  treasurer  elect. 

State  treasurer  keep  funds  separate:  state  and  county  to  account. — ?f,c.  918. 
The  state  treasurer  shall  keep  each  distinct  fund  coming  into  his  possession  as  public 
money,  in  a  separate  apartment  of  his  safe,  and,  at  each  quarterly  settlement  with 
the  state  auditor,  he  shall  count  each  fund  in  the  presence  of  the  auditor  to  see  if  the 
same  agrees  with  the  balance  found  on  the  books.  The  total  amount  acknowledged 
to  belong  to  each  fund  shall  be  exhibited  before  the  count.  County  treasurers  shall 
account  with  such  persons  as  the  board  of  supervisors  may  direct  in  like  manner,  and 
a  report  of  such  accounting  shall  be  made  to  the  board  at  their  next  meeting,  by  the 
person  so  appointed  by  them. 

Penalty  for  failure  to  perform  duty. — Sec.  919.  If  any  county  auditor,  or 
county  treasurer,  or  other  officer,  shrill  neglect  or  refuse  to  perfortn  any  act.  or  duty 
specifically  required  of  him  by  any  provision  of  this  title,  such  officer  shall  be  deemed 
guilty  of  a  misdemeanor  and  indicted  therefor;  and,  being  found  guilty,  shall  be 
fined  in  any  sum  not  exceeding  one  thousand  dollars,  for  the  payment  whereof  his 
bondsmen  shall  also  be  liable;  and  he  and  his  bondsmen  shall  also  be  liable  to  an 
action  on  his  official  bond  for  the  damages  sustained  by  any  person  through  such 
neglect  or  refusal. 

IV.     SUMMARY  OF  OTHER  STATUTES. 

He  is  required  to  collect  taxes  on  railroad  property  and  pay  the 
same  over  to  the  persons  or  corporations  entitled  to  receive  them; 
'Code,  Sec.  1321;  to  collect  of.  the  proper  parties  accounts  for 
clothing  furnished  blind  pupils  sent  from  the  county  to  the  College 
for  the  Blind,  and  pay  the  same  into  the  state  treasury;  Code, 
Sec.  1G78;  and  to  collect  accounts  for  clothing  furnished  to  the 
deaf  and  dumb,  sent  from  his  county  to  the  Deaf  and  Dumb 
Asylum,  and  pay  the  same  into  the  State  treasury.  Code,  Sec. 
1695. 

In  counties  having  two  county  seats . — The  Session  Laws 

of  1874,  Chap.  46,  provides  for  the  collection  of  taxes  in  counties 
having  two  county  seats,  that  in  counties  divided  into  two  districts 


StJMMAET    OF    OTHEK    STATUTES.  255 

for  the  collection  of  taxes,  and  where  there  are  two  county  seats, 
for  the  sale  of  lands  and  property  for  delinquent  taxes,  in  each 
collection  district,  shall  be  sold  at  the  county  seat,  or  place  where 
the  taxes  for  each  district  are  collected,  and  the  deputy  treasurer 
and  the  recorder  or  his  deputy,  at  such  county  seat  or  place,  shall 
do  and  perform  all  the  duties  required  of  the  treasurer  and 
auditor  of  such  county.  The  records  of  such  sales,  and  all  matters 
and  things  pertaining  to  the  same,  shall  be  kept  by  and  in  the 
office  of,  the  deputy  treasurer  and  the  recorder,  or  his  deputy,  as 
is  required  to  be  kept  by  the  treasurer  and  auditor.  All  property 
sold  under  the  provisions  of  this  act  shall  be  redeemed  of  the 
recorder  or  his  deputy,  and  the  certificate  of  redemption  so  issued 
shall  be  countersigned  by  the  deputy  treasurer,  and  the  deputy 
treasurer  and  recorder  or  his  deputy  shall  be  authorized  and 
empowered  to  do  and  perform  all  the  duties  in  relation  to  such 
redemption  as  required  of  the  treasurer  and  auditor  of  the  county. 
At  the  expiration  of  the  time  for  the  redemption,  as  required  by 
sections  890,  891,  892,  893,  894,  895,  of  the  Code,  the  deputy 
treasurer  is  authorized  to  make,  execute,  acknowledge,  and 
deliver  good  and  sufficient  deeds  to  the  purchaser  or  holder  of  the 
sale -certificate,  and  to  do  and  perform  all  other  acts  and  duties 
required  by  law  of  the  treasurer  of  the  county  in  regard  to  the 
same. 

Remission  of  penalty  and    interest   on   delinquent 

personal  tax. — The  Session  Laws  of  1874,  Chap.  29,  provides 
that  in  all  cases  where  the  county  treasurer  in  any  county  in  this 
State  has  neglected  for  the  term  of  four  years,  or  more,  to  bring 
forward  the  delinquent  taxes  on  personal  property  on  the  tax- 
books,  as  required  in  section  845  of  the  Code,  or  has  for  four 
years,  or  more,  neglected  to  collect  said  tax  by  distress  and  sale 
of  personal  property  or  real  estate,  upon  which  said  tax  is  a  lien, 
it  shall  be  the  duty  of  the  board  of  supervisors  of  the  county  to 
remit  all  of  the  penalties  and  interest  that  may  have  accrued  on 
such  delinquent  taxes,  on  the  payment  by  the  person  liable  for 
the  same  of  the  original  amount  of  such  tax. 

Taxation  of  capital. — The  Session  Laws  of  1874,  Chap.  GO, 
provides  that  the  paid-up  capital  of  all  savings  banks  organized 


25G  THE    TREASURER. 

and  doing  business  shall  be  subject  to  the  same  rates  of  taxation 
and  rules  of  valuation  as  other  taxable  property,  by  the  revenue 
laws  of  the  State,  which  taxes  shall  be  levied  On  and  paid  by  the 
banks  and  not  the  individual  stockholders.  The  franchise  of  such 
banks,  the  savings  and  funds  deposited  therein,  and  the  mortgages 
and  securities,  wherever  the  same  are  invested,  are  not  to  be 
taxed,  but  are  expressly  exempted  therefrom,  and  may  be  omitted 
from  assessments  of  the  bank  required  by  the  revenue  laws  of 
this  State. 

V.     SCHOOL  DISTRICT  TAX. 

The  provisions  of  the  Code  in  reference  to  school  district  taxes 

are  as  follows: 

Pay  over  taxes  to  appropriate  officer. — Section  1784.  The  county  treasurer 
shall,  on  the  first  Monday  in  April  of  each  year,  pay  over  to  the  treasurer  of  the 
district  the  amount  of  all  school  district  tax  which  shall  have  been  collected  and 
shall  render  him  a  statement  of  the  amount  uncollected,  and  shall  pay  over  the 
amount  in  his  hands  quarterly  thereafter.  He  shall  also  keep  the  amount  of  tax  levied 
for  school-house  purposes,  separate  in  each  sub-district,  where  such  levy  has  been  made 
directly  upon  the  property  of  the  sub-district  making  the  application,  and  shall  pay 
over  the  same  quarterly  to  the  township  treasurer  for  the  benefit  of  such  sub-district. 
He  shall,  in  all  counties  wherein  independent  districts  are  organized,  keep  a  separate 
account  with  said  independent  districts,  in  which  the  receipts  shall  be  daily  entered, 
which  books  shall  at  all  times  be  open  to  the  inspection  and  examination  of  the  dis- 
trict board  of  directors,  and  shall  pay  over  to  the  said  independent  districts  the 
amount  of  school  taxes  in  his  possession  on  the  order  of  the  board,  on  the  first  day 
of  each  and  every  month. 

To  notify  president  of  school  board  quarterly.— Sec.  1 785.  On  the  first  day  of 
each  quarter,  the  county  treasurer  shall  give  notice  to  the  president  of  the  school 
board  of  each  township  in  his  county  of  the  amount  collected  for  each  fund;  and  the 
president  of  each  board  shall  draw  his  warrant,  countersigned  by  the  secretary,  upon 
the  county  treasurer  for  such  amount,  who  shall  pay  the  amount  of  such  taxes  to  the 
treasurers  of  the  several  school  boards  only  on  such  warrants. 

VI.    THE     SCHOOL  FUND. 
To  pay  therefrom  amounts  loaned  by  the  auditor. — 

The  treasurer  is  required  to  pay  from  the  permanent  school  fund 
the  amounts  loaned  by  the  auditor  on  presentation  of  a  copy  of 
the  notes  given  therefor,  duly  certified  by  the  auditor,  and  retain 
said  certified  copy  as  his  voucher,  and  immediately  upon  receiv- 
ing or  paying  out  any  moneys  belonging  to  the  school  fund  to 
enter  a  correct  account  thereof  on  proper  books  kept  by  him  for 


PROCEEDS    OF    UNCLAIMED    PROPERTY,  ETC.  257 

the  ptirpose;  and  in  all  cases  where  money  is  received  distinguish- 
ing between  principal  and  interest,  and  he  is  required  to  keep  an 
account  showing  all  money  due  the  school  fund,  whether  principal 
or  interest,  and  distinguishing  the  amount  of  each  and  from  whom 
due;  and  his  books  should  at  all  times  present  a  clear  and  intelli- 
gible statement  of  the  school  fund  in  his  hands;  and  said  books 
shall  at  all  times  be  open  to  the  inspection  and  examination  of 
any  householder  or  tax-payer  in  the  county.  Code,  Sees.  1864, 
1876. 

Normal  Institutes. — The  Session  Laws  of  1874,  Chap.  57, 
provides  for  the  holding  of  Teachers'  Normal  Institutes,  and 
defraying  expenses  thereof.  County  superintendents  are  obliged 
to  return  to  the  county  treasurer  all  fees  received  from  such 
institutes,  and  unexpended  balances  of  State  appropriations, 
which  is  to  be  known  as  the  "  institute  fund."  The  inference  is 
that  this  fund  should  be  kept  by  the  treasurer,  separate  from 
other  funds,  in  his  accounts,  although  there  are  no  positive  direc- 
tions requiring  it. 

Penalty  for  neglect  of  duty.— Any  treasurer  failing  or 
neglecting  to  perform  any  of  the  duties  required  of  him,  relating 
to  the  school  fund  is  liable  to  a  fine  of  not  less  than  one  nor  more 
than  five  hundred  dollars,  to  be  recovered  of  him  and  his  bonds- 
men.     Code,  Sec.  1878.      s 

VIT.     PROCEEDS  OF  UNCLAIMED  PROPERTY. 

Provisions  for  the  sale  of.— The  Code  provides  for  the 
sale  of  unclaimed  property  by  warehousemen  and  carriers,  and 
that  the  surplus,  after  the  payment  of  their  charges  and  the 
expenses  of  sale,  be  disposed  of  as  follows: 

'  DISPOSITION   OF   PROCEEDS. 

Surplus  over  charges  to  be  deposited  in  county  treasury. — Section  2181. 
After  the  charges  due  and  unpaid  on  Ihc  property,  and  the  expenses  and  costs  of  sale 
have  been  taken  out  of  the  proceeds,  the  excess  in  the  hands  of  the  agent  or  person 
who  was  in  charge  thereof,  shall  be  by  him  forthwith  deposited  with  the  county 
treasurer  of  the  county  where  the  goods  were  sold,  subject  to  the  order  of  the  owner, 
said  ownership  being  properly  authenticated  under  oath,  and  such  person  shall  take 
from  such  treasurer  a  receipt  for  such  money,  and  deposit  the  same  with  the  county 
auditor.  He  shall  also  file  with  the  county  treasurer  a  schedule  of  the  property,  with 
the  name  of  the  consignee  or  owner,  if  known,   of  each  piece  of  property  sold,  the 

17 


258  THE  TREASURER. 

sum  realized  from  the  sale  of  each  separate  package,  describing  the  same,  together 
with  a  copy  of  the  advertisement  as  hereinbefore  provided,  and  a  full  statement  of 
the  receipts  of  the  sale,  and  the  amount  disbursed  to  pay  charges,  costs,  and 
expenses  of  sale,  all  of  which  shall  be  under  the  oath  of  the  party  or  his  agent, 
\vhich  schedule,  statement,  oeth,  and  advertisement  shall  all  be  filed  and  pre- 
served in  the  treasurer's  office,  for  the  inspection  of  any  one  interested  in  the  same. 
Duty  of  treasurer, — Sec.  2182.  Should  the  owner  of  the  property  sold  not  make 
a  demand  upon  the  county  treasurer  for  any  money  that  may  be  in  the  treasury  to 
his  credit,  according  to  the  provisions  of  this  chapter,  the  sum  so  unclaimed  shall 
be  accounted  for  by  the  county  treasurer,  and  placed  to  the  credit  of  the  county  in 
the  next  subsequent  settlement  made  by  the  treasurer  with  the  county;  and  should 
the  money  or  any  part  thereof,  remain  unclaimed  during  the  period  of  one  year,  it 
shall  then  be  paid  into  the  school  fund,  to  be  distributed  as  other  funds  may  be  by 
law,  which  may  be  raised  by  tax  on  other  property  of  the  county.  But  nothing 
herein  contained  shall  be  a  bar  to  any  legal  claimant  from  prosecuting  and  proving 
liis  claim  for  such  money  at  any  time  within  ten  years,  and,  the  claim  being  within 
that  period  prosecuted,  it  shall  be  paid  out  of  the  county  treasury  in  which  it  was 
originally  placed  without  interest. 

VIII.     KEEPING  ACCOUNTS. 

An  important  duty. — In  the  discharge  of  his  many  impor- 
tant duties  he  is  required  to  keep  accurate  accounts  with  the 
county,  and  with  each  of  the  various  funds. 

Owing  to  the  magnitude  of  these  several  funds,  these  several 
accounts  should  be  kept  with  system,  accuracy  and  neatness,  and 
in  such  a  manner  that  the  treasurer  can  at  any  time  render  to  the 
board  of  supervisors,  or  any  other  person,  entitled  thereto  a  clear 
balance  sheet,  showing  the  exact  condition  of  each  fund  or  tax, 
and  the  accounts  between  himself  and  the  county,  and  thereby 
the  financial  condition  of  the  county. 

The  necessary  books  of  his  office.— The  necessary  books 

of  his  office  are  as  follows: 

1.  The  tax  books,  or  lists. 

2.  A  warrant  book,  for  the  register  of  warrants  paid. 

3.  A  receipt  book,  containing  printed  blank  receipts  for  taxes, 
with  the  proper  stubs. 

4.  A  book  to  register  tax  sales. 

5.  A  cash  book. 

6.  A  ledger. 

Although  there  are  many  other  books  usually  found  in  use  in 
the  treasurer's  office,  it  is  believed  that  the  above  are  all  that  arc 
essential. 


KEEPING   ACCOUNTS.  259 

On  the  cash  book  could  be  made  the  daily  entries  of  all  cash 
received  and  paid  out,  or  in  case  of  the  numerous  receipts  for 
taxes  paid  the  treasurer,  at  the  close  of  business  each  day,  foot 
the  amount  of  tax  receipts  for  the  different  funds,  and  debit  him- 
self with  the  county,  and  credit  the  different  funds  with  the 
amount  received.  The  stubs  of  the  printed  tax  receipts  may 
contain  a  memorandum  of  the  amounts  received  of  the  different 
taxes  and  funds,  with  which  the  treasurer  should  keep  an  account; 
and  it  would  be  an  easy  matter  to  take  the  necessary  items  from 
these  stubs,  for  a  proper  entry  on  the  cash  book,  and  post  them  in 
proper  places  on  the  ledger. 

The  following  forms  for  keeping  the  accounts  and  books  have 
been  prepared  by  an  accountant,  and  are  recommended  to  treas- 
users,  as  the  most  simple,  and  convenient  method  of  keeping 
them: 


260 


THE   TREASURER. 


1874. 


Cash  Account. 


Dr. 


Jan. 


Jan. 


Feb. 


To  received  of   L.  S.,  ex-Treasurer,  as  fol- 
lows, viz: 

County  Fund 

Bridge  Fund 

Anamosa   Corporation 

State  Fund 

Clay  Township  Road  Fund 

School  District  Township  of  Cass 

Permanent  School  Fund 

School  Fund  interest,  account 


1  To  balance  hrougJit  doxpn 

To  Permanent  School  Fund,  received  of  O. 

T.Day 

To  Permanent  School  Fund,  received  of  S. 

M.  Graves 

To  Permanent  School  Fund,  received  of  N, 

Potter 

To  County  Fund,  received   of  J.  C.  Deitz, 

clerk,  sheriff's  fees 

To  County  Fund,  received  of  J.  C.  Deitz, 

clerk,  costs.  State  v.  Johnson 

To  County  Fund,  received  of  J.  C.  Deitz, 

clerk,  jury  fees   

To  Permanent  School  Fund,  received  of  G. 

Ellis 

To  School  Fund,  interest  on  account,  ree'd 

of  E.  Ackerman . . . .' 

20  To  School  District  Township  of  Cass 


1  To  balance  brought  doicn 

lOjTo  Permanent  School  Fund,  received  of  J 

I  Bender 

10  To  School    Fund,    interest    account,    rec'd' 

of  J.Ellis 

25  To  Permanent    School    Fund,  received   of 

Wm.  Paul 

25  To  School  District  Township  of  Cass,  rec'd 
per  taxes  collected  in  February   . .  . 


$3,837,74 

4,555  50 

5473 

110  Go 

15  81 

11721 

889  28 

1,196  75 

^10,777 


67 


$10,777 
300 
120 


67 
00 
00 


380100 

lOOjOO 

100  00 

6J00 

140100 

15  00 
28590 


812,22.4157 


$12,224  57 

350!00 

1400 


500 
1,000 

$14,088 


00 
14 
71 


CASH    BOOK. 


261 


1874. 


Cash  Account. 


Cr. 


Jan. 


1  By  balance  on  hand  this  day , 


Jan. 


31 


Feb. 


10 


$10,777167 


$10,777  67 


By  balance  on  hand  this  day . 


$12,224 


57 


By  Permanent  School   Fund,  J.  Bender. 
By  balance  carried  to  March  account. 


$12,224  57 


$350'00 

$18,738|71 


$14,088 


71 


262 


THE  TREASURER. 


1874. 


Cash  Account. 


Dr. 


March 


April 


May 


June 


July 


11  To  Hal,  on  hand  this  day 

SlTo  Sch.  Fund  Int.  acc't  iV.  Fulton 

To  Permanent    School  Fund    rec'd   of  J 

Warren 

To  School  Dist.  Tp.  of  Cass,  rec'd  Taxes 
collected  March 


1  2o  lialance  on  hand  this  day 

10, To  Permanent  Sch.  Fund  rec'd  of  C.  Hines 


15 


30 


To  School  Fund    Int.    acc't    rec'd    of  W 
Dunning 

To  School   District  Tp.  of   Cass  rec'd 
taxes  collected  April 


for 


1  To  Balance  on  hand  May  1 

6  To  Permanent   School    Fund    rec'd  of  A 
Mershon 

20  To  Sch.  Fund  Int.  acc't  rec'd  of  R.  Lewis. 


31 


To  Sch.  Fund  Int.  acc't  rec'd  of  J.  Doe . 
To  Sch.  District  Tp.  of  Cass,  taxes  collected 
May 


To  Bal.  on  hand  this  day 

To  County  Fund  Taxes  collected  to  date 
Bridge  Fund  Taxes  collected  to  date    .... 
To  Anamosa  Corporation  Taxes  collected 

to  date   

To  State  Fund  Taxes  collected  to  date    . . 
To  Clay  Tp.  Road  Fund  Taxes  collected 

to  date 

To  School  District  Tp.  of  Cass,  Auditor*s 

appr.  Mar.  6,  '74     ... 

To  Permanent  Sch.  Fund  rec'd  of  R.  Life 


1  To  Balance  on  hand  this  day 


$14,383111 
400  00 


30 
226 


$15,039  96 


60 

22 


$14,739 

500 
105 
205 


93 

00 
50 
00 


73  71 


$15,624114 

20,38036 
3,80189 

2,53386 
14,00000 

17483 

314|00 
700  00 


$57,279  08 
$23,012.83 


1874. 


cash  book. 
Cash  Account. 


263 
Cr. 


March  |20  By  Permanent  School  Fund  of  Wm.  Hill 
By  carried  to  April  acc't 


April 


May 


June 


10 


25 


By  Permanent  School  Fund,  J.  Jones 
By  Balance  carried  to  May  acc't  . . . 


By  Permanent  School  Fund,  D.  Fall . 
By  Balance  carried  to  June  acc't . . . 


By  County  Fund  p'id  C'nty  Wrr'nts  to  date 
By  Bridge  Fund  paid  Bridge  Warrants  to 

date 

By  i\.naraosa  Corporation  paid  W.  S.  Ben- 
ton, Treasurer  to  date 

By  State  Fund  paid  State  Treasurer  to  date 
By  Clay  Tp.  Road  Fund  paid  Tp.  Clerk  . . 
By  Sch.  Dist.  Tp.  of  Cass  paid  Treasurer  . 
By  Sch,  Dist.  Tp.  of  Cass  paid  Treasurer, 

(apportionment  of  Auditor) 

By  Permanent  School  Fund,  J.  Ellis 

By  Sch.  Fund  Int.  acc't  paid  Dist.  Tp.  Cass 
By  Sch.    Fund  Int.    acc't   paid  Dist.   Tp. 

Fairview , 

By  Sch.  Fund  Int.  acc't  paid  Dist.  Tp.  Halo 
By  Sch.    Fund   Int.   acc't    paid    Dist     Tp. 

Jackson 

By  Sch.  Fund  Int.  acc't  p'd  Dist.  Tp.Wayne 
By  Balance  carried  down 


^      700  00 
14,383  11 


$15,083|ll 

I      300  00 
14,739  93 


$15,039  93 

i    2Eom 

15,374|l4 


$15,624  14 


$57,27908 


264 
1874. 


the  tbbasurkr. 
County  Fund. 


Dr. 


June 
July 


1874. 

June 
July 


1874. 

June 
July 


1874. 

June 
July 


1874. 
June 


ToC.B.4... 

To  Balance. 


Bridge  Fund. 


To  C.  B.  4  . . 
To  Balance. 


AnAMOSA   CORPOEAllON. 


ToC.  B.  4... 
To  Balance. 


State  Fund. 


To  C.  B.  4. 


1  To  Balance. 


Clat  Township  Road  Fund. 
To  C.  B.  4 


$11,998111 

13,42599 


$24,424 


Dr. 

^3,G29 
4,727 


10 


59 

80 


$8,357,39 


Dr. 

$2,1290^ 
459  56 

82,588,59 


Dr. 


$12,194 


08 


l,9irr57 
$14,11065 


Dr. 

$19064 
$190|64 


1874. 


liEDGEE. 

Coujs^TY  Fund. 


265 


Ce. 


Jan. 
Jan. 
June 


July 

1874. 

Jan. 
June 


July 


1874. 

Jan. 
June 


July 


1874. 

Jan. 
June 


July 


1874. 

Jan. 
June 


IByC.  B.  1, 

lO'ByC.  B.  1, 

l]By  C.  C.  3. 


1 -Sy  Balance. 


Bridge  Fund. 


1 


By  C.  B.  1. 


By  C.  B.  3. 


^  By  Balance. 


Anamosa  Corporation. 


1  By  C.  B.  1. 
3  By  C.  B.  3 


By  Balance. 


State   Fund. 


By  C.  B.  1 . 
Bv  C.  B.  3. 


VBy  Balance. 


Ci-AY  Township  Road  Fund. 


1  By  C.  B.  1. 
1  By  (J.  B.  3. 


$3,837 

206 

20,380 


74 
00 
36 


$24,424!  10 


$12,425 

Cr. 

$4,555 


99 


50 


3,80189 


$8,35739 


$4,727!80 


Cr. 

$54  73 
2,533:86 


$2,588|69 


$459  56 


Cr. 


$110  65 
14,000:00 


$14,11065 


$1,916 


Cr. 

$15 
174 

$190 


57 


81 
83 

64 


266 


THE   TREASURER. 


1874. 


Sen.  District  Township  of  Cass. 


Dr. 


June 
June 


1844. 

Feb. 

March 

April 

May 

June 


To  C.  B.  4. . 
ToC.  B.  4.. 
To  Balance 


Permanent  School  Fund. 


To  C.  B.  1 . . 
ToC.  B.  4.. 
ToC.  B  4.. 
To  C.  B.  4 . . 
To  C.  B.  4  . 
To  Balance 


Dr. 


1350:00 
700,00 
300,00 
25000 
600  00 

2,779  28 


$4,979  28 


1874. 


LEDGER. 

ScH.  District  Township  of  Cass. 


267 


Ck. 


Jan. 
Jan. 
Feb. 
March 
April 
May- 
June 


July 


1874. 

Jan. 
Jan. 
Jan. 
Jan. 
Jan. 
Feb. 
Feb. 
March 
April 
May- 
June 


July 


IBy  C.  B.  1, 
20  By  O.  B.  1. 
2o]By  C.  B.  1. 
31  By  C.  B.  3. 
30By  C.  B.  3. 
30  By  C.  B.  3. 

1  By  C.  B.  3. 


By  Balance. 


Permanent  School  Fund. 

By  C.B.I 

By  C.  B.  1 

By  C.  B  1 

By  C.  B.  1 

By  C.  B.  1 

By  C.B.I 

By  C.B.I 

By  C.  B.  1 

By  C.B.  1 

By  C.  B.  1 

By  C.  B.  1 

By  Balance 


$117 

21 

285 

90 

1,000 

14 

613 

95 

226 

22 

73 

71 

314 

00 

$2,631 

13 

$327 


Cr. 


$889  28 
300  00 


13 


120 
380 
140 
350 


00 
00 
00 
00 


500100 

7oo;oo 

400l00 
500  00 
70000 


$4,979128 


$2,779 


28 


268  tue  teeasurer. 

1874.  School  Fund  Interest  Account. 


Dr. 


June 
June 

25 

25 

ToC.  B.  4 

ToC.  B.  4 

yjo     Hdln.ncp.    

$800 
360 
376 

80 
00 
50 

$1597130 

1874. 

Cash  Account. 

Dr. 

Jan. 

1 

20 

1 

25 

1 
31 

1 

30 

1 
31 

To  C  B  1       

$10,777  67 

10,777  67 
1,446190 

Jan. 

ToC.  B.  1 

$12,224  57 

Feb. 

To   B cilancc 

$12,224 
1,864 

57 

Feb. 

To  C.  B.  1 

14 

$14,088 

71 

March 

To   BoXcincc 

$13,738 

71 

March 

ToC.  B.  3 

1,344  40 

$15,083  11 

April 
April 

To   Bdlnnce -. 

$14,38311 

ToC.  B.  3 

656 

82 

$15,039 

93 

May 
May 

To   Balance 

$14,739  93 
884  21 

ToC.  B.3 

$15,624ll4 

LEDGER. 


269 


1874 

• 

School  Fund  Interest  Account. 

Cr. 

Jan. 

Jan. 

Feb. 

March 

April 

May 

May 

1 
20 
10 

5 
15 
20 
25 

1 

ByC.  B.  1... 
ByC.  B.  1... 
ByC.  B.  1... 
ByC.  B.  3... 
BvC.  B.  3.. 
ByC.  B.  3... 
ByC.  B.  3... 

$1,19675 
1500 

i4;oo 

30:45 

30  60 

105150 

205' 00 

1 

$1,597|30 

July 

By  Balance. 
C 

$376 
Cr. 

50 

1874. 

ASH  Account. 

Jan. 

1 
31 

10 
1 

31 
31 

30 
30 

5 
31 

By  Balance. 

$10,777  67 

Jan. 

By  Balance. . 

$12,224  57 

$12,224  57 

Feb. 

Bv  C.  B.  2.. . 

$350  00 

March 

By  B< dance. . 

13,738!71 

$14,088  71 

March 

By  C.  B.  4 . . . . 

$700 
14,383 

00 

March 

By  Balance . . 

11 

$15,083 

11 

April 

ByC.  B.  4.... 

$300 
14,739 

00 

April 

By  Balance. . 

93 

$15,039 

93 

May 
May 

By   C.    B.   4. 
By  Balance. . 

$250 
15,374 

00 

14 

1 

$15,624 

14 

270 


1874. 


the  treasurer. 
Cash  Account. 


Dr. 


June 


July 


l|To  Balance. 
3OT0C.  B.  4. 


To  Balance. 


15,374 

41,904 


%  57,279  08 


14 

94 


%  23,012.83 


1874 

Balance  Sheet,  July  1,  1874. 

De 

July 

1 

Cash  Account • 

%  23,012 

83 

$  23,012 

83 

1874. 


LEDGER. 

Cash  Account. 


271 
Cr. 


June 


30:By  C.  B.  4.. 
31, ^y  Balance. 


$  34,26625 
23,012183 

$  57,279|o8 


1874. 


Balance  Sheet,  July  1,  1874. 


Cb. 


July 


HCounty  Fund 

Bridge  Fund   

Anamosa  Corporation 

State  Fund 

School  District  Township  Cass . 

Permanent  School  Fund 

School  Fund  Interest  Account 


12,425199 

4,727180 

459156 

1,916157 


327 
2,779 
376 

23,012 


13 

28 
50 

83 


272  THE  TfiEASURER. 

IX.     DECISIONS    ILLUSTRATING    IIIS   DUTIES    AND 
LIABILITIES. 

His  liability  fixed  by  his  olficiul  bond. — The  duties  and 

responsibilities  of  the  county  treasurer  are  fixed  by  his  official 
bond,  and  from  it  the  measure  of  liability  incurred  by  him  in  the 
preservation  and  disposal  of  the  money  received  by  him,  as  treas- 
urer, is  to  be  ascertained  and  determined. 

He  is  only  required  to  exercise  reasonable  diligence,  and  care, 
in  the  preservation  and  disposal  of  the  public  money,  and  if  money 
is  stolen  from  the  treasury  of  the  county,  without  any  want  of 
reasonable  care,  and  diligence  on  the  part  of  the  treasurer,  in  the 
care  and  preservation  of  said  money,  he  is  not  liable  therefor. 
5  Iowa,  149. 

The  tax  list  and  warrant,  his  justification. — The  tax 

list  and  warrant  for  its  collection  are  sufficient  authority  and  jus- 
tification to  the  treasurer  for  the  collection  of  the  taxes  in  the 
mode  prescribed  by  law,  and  he  cannot  be  made  liable  as  a  wrong- 
doer, in  consequence  of  any  illegality  in  the  proceedings  prior  to 
his  receiving  the  tax  list,  even  when  the  list  in  question  is  not  for 
the  collection  of  the  ordinary  State  and  county  revenue,  but  for  a 
tax  levied  for  a  special  purpose  and  in  a  particular  manner,  as  to 
pay  the  subscription  of  the  county  to  the  stock  of  a  railroad  com- 
pany.    8  Iowa,  193. 

Illegality  of  the  tax,  no  defense  for  not  accounting.— 

In  an  action  against  the  treasurer  and  his  sureties  upon  his  official 
bond,  the  defendants  cannot  set  up  the  illegality  of  the  assessment 
as  an  excuse  for  not  accounting  for  and  paying  over  the  taxes 
which  have  been  paid  without  objection  by  the  tax  payers,  and 
received  by  the  treasurer  by  virtue  of  his  office;  and  where  the 
bond  is  for  the  faithful  discharge  of  all  duties  "now  or  hereafter 
required  of  his  office  by  law,"  it  constitutes  no  defense  to  an 
action  upon  it,  that  a  part  of  the  money  sued  for  came  into  his 
hands  under  a  law  prepared  subsequ'^ntly  to  the  execution  of  the 
bond.     14  Iowa,  170. 

Statute  of  limitation:  Avhen  it  applies. — The  failure  of 

the  treasurer  to  pay  over   and  account  to  the  county  or  State  for 


DUTIES    AND    LIABILITIES  273 

the  revenue  in  his  hands  is  the  omission  of  an  official  duty  within 
the  meaning  of  the  statute,  and  an  action  for  such  failure  must  be 
commenced  within  three  years,  or  it  will  be  barred  by  the  statute 
of  limitation.     17  Iowa,  223. 

County  not  liable  for  wrongful  acts  of  officers  .—The 

general  principle  rendering  a  master  liable  for  the  tortious  acts  of 
his  servant  committed  in  his  service,  does  not  apply  to  the  wrong- 
ful acts  of  the  officers  of  a  municipal  corporation  who  are  elected 
for  a  definite  term,  during  which  they  are  restrained  and  governed 
only  by  the  statutes  which  prescribe  their  duties,  which  statutes^ 
by  presumption  of  law,  are  known  to,  and  which  by  the  exercise 
of  a  reasonable  diligence  may  be  practically  understood  by,  every 
one  who  may  have  business  with  them;  and  a  county  is  not  liable 
to  a  tax  payer  for  moneys  fraudulently  collected  by  the  treasurer, 
as  taxes,  and  appropriated  to  his  own  use.     18  Iowa,  199. 

Sureties  on  a  substituted  bond:  when  not  liable.— The 

sureties  upon  a  substituted  official  bond,  are  not  liable  for  moneys 
which  came  into  the  hands  of  the  principal  prior  to  the  execution 
of  the  bond,  and  during  the  existence  of  a  prior  bond  for  which 
the  substituted  bond  was  given.     22  Iowa,  360. 

Treasurer  liable  for   i>artial  taxes   received.— The 

treasurer  is  liable  on  his  bond,  for  moneys  received  by  him  in 
partial  payment  of  taxes.     21  Iowa,  84. 

Treasurer  not  responsible  for  acts  of  a  book-keeper: 

W^Iien. — The  treasurer  is  not  liable  for  the  acts  or  defalcations  of 
a  book-keeper,  or  assistant  in  his  office,  employed  by,  and  acting 
under,  the  direction  of  the  board  of  supervisors  of  his  county. 
34  Iowa,  317;  IG  Illinois,  81. 

Term  of  office  limited  to  two  years:  consequences  of 
holdin;^  over. — The  term  of  office  of  a  county  treasurer  is  for 
two  years  and  until  his  successor  is  elected  and  qualified,  but  a 
failure  to  qualify,  creates  a  vacancy  in  the  office,  which  should  be 
filled  by  appointment.  And  where  a  treasurer  was  re-elected 
and  continued  in  office  during  a  second  term,  without  being 
re-qualified,  it  was  held 

1.     That  after  the  time  fixed  for  qualification  he  did  not  legally 
hold  over,  but  remained  treasurer  de  facto  only. 
18 


274  THE    TREASURER. 

2.  That  the  sureties  on  the  bontl  executed  by  him  when  qnah'- 
fied  for  liis  lirst  term,  were  not  liable  for  his  mis-feasance  or  non- 
feasance in  office  after  the  expiration  of  that  term.     10  Iowa,  39. 

Sureties  only  liable  for  acts  during  term— Sureties 

on  official  bonds  are  liable  only  for  acts  done  durinc^  the  term 
for  which  the  bond  was  given,  even  when  the  principal  holds  over 
after  the  expiration  of  that  term.     10  Iowa,  39. 

X.     FEES  AND  COMPENSATION. 

What  the  Code  provides  in  reference  thereto.— Section  370."..  Each  county 
treasurer  shall  receive  for  his  services  the  following  compensation: 

1.  Two  per  cent  cf  all  money  collected  by  him  as  taxes  due  any  incorporated  city 
or  town,  to  be  paid  out  of  the  same ; 

2.  Three  per  cent  of  all  taxes  collected  by  him  for  all  other  tax  funds,  to  be  paid 
out  of  the  county  treasury; 

3.  All  fei-s  now  allowed  him,  exclusive  of  his  annual  salary; 

4.  For  each  certificate  of  purchase  issued  for  land  sold  for  non-payment  of  taxes, 
thirty-five  cents ; 

;■).  For  mileage  by  the  nearest  traveled  route  when  paying  money  into  the  State 
treasury  or  national  bank,  when  required  by  law,  ten  cents  for  each  mile,  counting 
one  way; 

6.  Such  additional  compensation  as  the  board  of  supervisors  may  deem  proper. 
When  the  aggregate  amount  of  the  compensation  authorized  by  this  section,  exceeds 
fifteen  hundred  dollars,  exclusive  of  what  is  received  under  the  following  section  and 
the  fourth  sub-division  hereof,  the  excess  shall  be  paid  into  the  county  treasury  for 
the  use  of  the  county,  except  that  in  counties  having  two  county-scats,  such  aggregate 
compensation  shall  not  exceed  two  thousand  dollars.  But  the  compensation  for 
clerks  necessary  for  the  proper  transaction  of  the  business  shall  be  paid  by  the 
county. 

Give  information  relative  to  taxes,  when. — Sec.  3794.  The  county  treasurer 
shall,  if  applied  to  by  letter,  enclosing  thirty  cents  value  in  postage  stamps,  asking  for 
information  of  the  amount  of  taxes  upon  any  specified  parcel  or  parcels  of  land  in 
his  county,  answer  the  same  correctly  by  mail,  giving  direct  answers  to  all  inquiries 
in  such  letter  respecting  the  amount  and  interest  of  the  unpaid  taxes,  as  the  same 
appears  from  the  tax-books  in  his  office. 

If  the  total  of  such  land  specified  in  any  one  letter  exceeds  three  hundred  and 
twenty  acres,  then  such  treasurer  is  not  bound  to  answer  such  letter  unless  it  con- 
tains, besides  the  thirty  cents  above  provided,  ten  cents  in  addition  for  every  one 
hundred  and  sixty  acres,  when  the  total  acres  specified  in  such  letter  exceed  the 
said  three  hundred  and  twenty  acres ;  but  the  aggregate  fees  thus  charged  shall  in  no 
case  exceed  the  sum  of  fifty  cents  :  and  upon  the  return  to  the  treasurer  of  the  letter 
or  a  copy  thereof  so  sent  by  him,  with  the  amount  due  as  shown  by  such  letter,  such 
treasurer  shall  pay  such  taxes  and  return  a  receipt  therefor  by  mail. 

Penalty  for  failure. — Sec.  3705.  Any  treasurer  who  shall  neglect  for  twenty 
days  after  the  receipt  of  any  such  letter  with  money  enclosed  as  aforesaid,  to  answer 
the  same  fully  as  required  in  the  preceding  section,  or  who  shall  directly  or  inairectly 
receive    or   be   concerned   in   receiving  any  greater   compensation  for  the  ser'-' 


FEES    AND    COMPE^rSATION.  275 

mentioned  in  the  preceding  section  than  is  therein  provided,  shall  forfeit  to  the  person 
aggrieved,  for  each  offense  the  sum  of  fifty  dollars,  which  may  be  recovered  in  a 
civil  action  in  any  court  having  jurisdiction. 

Render  account  of  money  received  as  compensation  to  supervisors. — Sec. 
^796.  The  county  treasurer  shall  enter  in  a  book  kept  for  that  purpose,  all  moneys 
received  by  him  for  services  rendered,  designating  for  what  the  same  was  received, 
and  shall  render  an  account  verified  by  affidavit  to  the  board  of  supervisors  at  each 
session  thereof,  stating  fully  all  money  so  received  and  from  what  source  derived 
and  any  excess  to  which  he  would  be  entitled  under  the  preceding  section  over  and 
above  the  sum  therein  limited,  shall  be  paid  into  the  county  treasury. 


276 


THK    RKCOBDER. 


CHAPTER  XXXIT. 


THE  RECORDER. 

I.     HIS  ELECTION,  DEPUTIES,  ETC. 
Provisions  of  the  statute  relating  to  his  election,  etc. 

— It  will  be  observed  by  reference  to  the  provisions  of  the  Code, 
contained  in  the  first  chapter  of  this  treatise,  that  the  recorder  is 
elected  in  each  even-numbered  year;  that  he  should  give  an  offi- 
cial bond  and  qualify  like  the  clerk  at  the  same  time;  that  he 
may  appoint  a  deputy,  from  whom  he  is  required  to  take  a  bond, 
and  for  whose  acts  he  is  responsible;  and  that  the  general  provi- 
sions of  the  statute  in  reference  to  removal,  vacancies  and  misde- 
meanors in  office,  apply  to  him,  as  well  as  to  the  other  county 
officers. 

The  forms  relating  to  these  matters  may  be  found  in  this  trea- 
tise, relating  to  the  clerk. 

II.     HIS  DUTIES. 

General  provisions . — The  Code  provides  in  relation  thereto 
as  follows:  , 

Duties  of.-SECTlON  335.  The  recorder  shall  keep  his  office  at  the  county  seat, 
and  he  shall  record  at  length,  and  as  speedily  as  possible,  all  instruments  in  writing 
which  may  be  delivered  to  him  for  record  in  the  manner  directed  by  law. 

Treasurer  eligible.— Sec.  336.  The  same  person  may  be  eligible  to,  and  hold 
the  office  of  county  recorder  and  county  treasurer;  provided,  the  number  of  inhabi- 
tants in  such  county  does  not  exceed  ten  thousand. 

On  the  vacation  of  a  town  or  city  plat.— On  the  vacation 

of  a  town  or  city  plat,  or  any  addition  thereto,  as  provided  by 
Chap.  13   of  the  Code,  he  is  required  to  write  in  plain  letters, 


DUTIES   OF    KECOEDEK.  277 

across  the  plat  so  vacated,  the  word  "  vacated,"  and  also  to  make 
a  reference  on  the  same,  to  the  volume  and  page  in  which  the 
instrument  of  vacation  is  recorded. 

Other  records  and  books  required. — Beside  the  records 

and  necessary  books  required  by  the  foregoing  provisions  of  the 
statute,  the  Code  further  provides  as  follows: 

Conditional  sales :  when  invalid.— Section  1922.  No  sale,  contract,  or  lease, 
wherein  the  transfer  of  title  or  ownership  of  personal  property  is  made  to  depend 
upon  any  condition,  shall  be  valid  against  any  creditor  or  purchaser  of  the  vendee,  or 
lessee  in  actual  possession  obtained  in  pursuance  thereof,  without  notice,  unless  the 
same  be  in  writing,  executed  by  the  vendor  or  lessor,  acknowledged  and  recorded 
the  same  as  chattel  mortgages. 

Mortgages  mnst  he  recorded. — Sec.  1923.  No  sale  or  mortgage  of  personal 
property,  where  the  vendor  or  mortgagor  retains  actual  possession  thereof,  is  valid 
against  existing  creditors  or  subsequent  purchasers,  without  notice,  unless  a  written 
instrument  conveying  the  same  is  executed,  acknowledged  like  conveyances  of  real 
estate,  and  filed  for  record  with  the  recorder  of  the  county  where  the  holder  of  the 
property  resides. 

Eecorder  to  keep  entry  book  or  index, — Sec.  1924.  The  recorder  must  keep 
an  entry  book  or  index  for  instruments  of  the  above  description,  having  the  pages 
tliereof  ruled,  so  as  to  show  in  parallel  columns,  in  the  manner  hereinafter  provided 
in  case  of  deeds  for  real  property : 

1.  The  mortgagors  or  vendors; 

2.  The  mortgagees  or  vendees; 

3.  The  date  of  the  filing  of  the  instrument; 

4.  The  date  of  the  instrument  itself; 

5.  Its  nature; 

6.  The  page  and  book  where  the  record  is  to  be  found. 

To  make  note  of  day  and  hour  of  filing,  etc. — Sec.  1925.  Whenever  any 
written  instrument  of  the  character  above  contemplated  is  filed  for  record  as  afore- 
said, the  recorder  shall  note  thereon  the  day  and  hour  of  filing  the  same,  and  forth- 
with enter  in  his  entry  book  all  the  particulars  required  in  the  preceding  section, 
except  the  sixth;  and  from  the  time  of  said  entry,  the  sale  or  mortgage  shall  be 
deemed  complete  as  to  third  persons,  and  have  the  same  effect  as  though  it  had  been 
accompanied  by  the  actual  delivery  of  the  property  sold  or  mortgaged. 

Must  record. — Sec.  192(3.  The  recorder  shall, as  soon  as  practicable,  recordsuch 
instrument,  and  enter  in  his  entry  book  in  its  proper  place,  the  page  and  book  where 
the  record  may  be  found. 

Beside  the  foregoing  provisions,  the  Code  further  provides  for 
the  indexing  and  recording  of  instruments  relating  to  real  prop- 
erty, as  follows: 

Instrument  affecting  recorded. — Section  1941.  No  instrument  affecting  real 
estate,  is  of  any  validity  against  subsequent  purchasers  for  a  valuable  consideration, 
without  notice,  unless  recorded  in  t..e  olTicc  of  the  recorder  of  the  county  in  which 
the  land  lies  as  hereinafter  provided. 


278  THE    RECORDER. 

Sec.  1942.  It  shall  not  be  deemed  lawfully  recorded,  unless  it  has  been  previously 
acknowledged  or  proved  in  the  manner  herein  prescribed. 

Recorder  to  keep  index  of  records. — Sec.  1943.  The  recorder  must  keep  an 
entry  book  or  index,  the  pages  of  which  are  so  divided  as  to  show  in  parallel  columns: 

1.  The  grantors; 

2.  The  grantees; 

3.  The  time  when  the  instrument  was  filed; 

4.  The  date  of  the  instrument; 

5.  The  nature  of  the  instrument ; 

6.  The  book  and  page  where  the  record  thereof  may  be  found ; 

7.  The  description  of  the  land  conveyed. 

To  make  entries  on  instrument  and  in  index. — Sec.  1944.  The  recorder 
must  indorse  upon  every  instrument  properly  filed  in  the  office  for  record,  the  time 
when  it  was  so  filed,  and  shall  forthwith  make  the  entries  provided  for  in  the  preced- 
ing section,  except  that  of  the  book  and  page  where  the  record  of  the  instrument  may 
be  found,  and,  from  that  time,  such  entries  shall  furnish  constructive  notice  to  all 
persons  of  the  rights  of  the  grantee  conferred  by  such  instrument. 

Arranged  alphabetically. — Sec.  1945.  The  entries  in  such  entry  book,  shall 
show  the  names  of  the  respective  grantors  and  grantees  arranged  in  alphabetical 
order. 

Must  be  recorded. — Sec.  1946.  Every  such  instrument  shall  be  recorded,  as 
soon  as  practicable,  in  a  suitable  book  to  be  kept  by  the  recorder  for  that  purpose; 
after  which  he  shall  complete  the  entries  aforesaid,  so  as  to  show  the  book  and  page 
where  the  record  is  to  be  fdund. 

Deeds  of  town  lots  recorded  in  separate  books.— Sec.  1947.  The  recorder 
shall  record  all  deeds,  mortgages,  and  other  instruments  affecting  town  lots  in  cities 
or  villages,  the  plats  whereof  are  recorded  in  separate  books  from  those  in  which 
other  conveyances  of  real  estate  are  recorded. 

Cannot  file  until  indorsed. — Sec.  1953.  The  recorder  shall  not  file  for  record 
any  deed  of  real  property,  until  the  proper  entries  have  been  made  upon  the  transfer 
books  in  the  auditor's  office  and  indorsed  upon  the  deed. 

III.     DECISIONS  RELATING  TO  RECORDER. 
Directions  of  the  statutes  to  be  strictly  observed. — 

Although  matters  relating  to  the  effect  of  instruments  thus 
recorded,  or  to  the  neglect,  or  mistake  in  properly  indexing  and 
recording,  so  far  as  third  parties  are  concerned,  do  not  properly 
come  within  the  proper  scope  of  this  treatise,  yet,  it  may  be 
proper  to  observe  that  the  directions  of  the  statute  in  reference 
thereto,  should  be  strictly  observed  by  the  recorder. 

The  property  sliouid  be  correctly  referred  to  in  the 

index  . — It  has  been  repeatedly  held  that  the  property  described, 
or  referred  to  in  the  index,  is  the  extent  of  the  notice  imparted 
by  the  record.     11  Iowa,  261;  13  Iowa,  570;  14  Iowa,  269. 


ORIGINAL   ENTRIES — EVIDENCE.  279 

An  acknowledgment  by  an  interested  party. —  An 

acknowledgment  of  a  conveyance,  taken  and  certified  by  a  person 
interested  as  grantee,  should  not  be  recorded;  a  record  thereof  is 
not  constructive  notice  to  a  subsequent  purchaser.     20  Iowa,  231. 

His  liability  for  omission  of  dnty.— The  importance  of 

a  faithful  discharge  of  the  duty  of  recorder,  in  respect  to  proper 
entries  on  the  index  book,  will  be  apparent,  when  it  is  understood 
that  he  is  liable  to  any  party  that  may  be  injured  by  the  omission 
of  this  duty;  and  it  is  evident  from  the  decisions  above  referred 
to,  and  the  general  principles  of  the  law,  that  he  with  his  sureties, 
would  be  liable  on  his  official  bond,  for  all  such  neglect  of  duty, 
whereby  any  damage  should  result  to  any  person. 

IV.      BOOK     ENTITLED      "COPIES      OF      ORIGINAL 

ENTRIES." 

The  Code  provides  in  reference  thereto  as  follows: 

Books  of  original  entries. — Section  3703.  The  recorder  in  each  of  the  several 
counties  in  this  state,  shall  cause  to  be  procured  a  book,  entitled  "  copies  of  original 
entries  "  to  be  kept  as  a  record  in  his  office,  in  which  shall  be  copied  a  list  of  the 
original  entries  of  land  within  his  county,  with  name  of  the  person  or  persons  entering 
the  same  and  the  date  of  such  entry,  for  which  he  shall  receive  a  reasonable  compen- 
sation, to  be  audited  and  allowed  by  the  board  of  supervisors  of  his  county. 

Copies  of. — Sec.  3704.  Said  book,  containing  a  copy  of  such  entries,  when  com- 
pared with  the  originals,  and  certified  to  as  true  copies  by  the  register  of  the  land 
office  at  which  such  original  entries  were  made,  shall  be  deemed  a  matter  of  record, 
and  certified  copies  thereof  under  the  hand  of  said  recorder  may  be  received  and 
read  in  evidence  in  all  the  courts  in  this  state,  with  like  effect  as  other  certified  copies 
of  orignal  papers  recorded  in  his  office. 

V.    EVIDENCE. 
Certified  copy  of  Ms  records  as  evidence.— It  will  be 

observed  by  reference  to  a  general  provision  of  the  Code,  Section 

3702,  contained  in  Chapter  One,  that  certified  copies  of  any  records 

in  his  oflBce,  are  evidence  of  equal  credibility  with  the  original 

record. 

RECORDEllS  CEKTIFICATE. 
No.  IIQ. 

State  of  Iowa,      ) 

^ ,       '      V  ss. 
County.  ) 

I,   R    D,  recorder   of    said    county,   hereby  certify   that    the 


280 


THE   KECOKDEE. 


foregoing  writing  is  a  copy  from  the  original  record  in  my  office, 
and  of  the  whole  thereof. 

Dated  this  ....  day  of  .... ,  18 . . 

R . . . .   D . . . . ,  Recorder. 

Abstructs. — By  reason  of  the  familiarity  of  the  recorder  with 
the  records  of  liis  office,  as  well  as  his  usual  competency  and  skill, 
he  is  frequently  called  upon  to  furnish  abstracts  of  the  title  to 
land  in  his  county. 

Abstracts  not  an  official  act. — His  acts  in  this  respect 
are  usually  not  official,  and  his  certificates  of  the  correctness 
thereof,  would  be  of  no  value  as  evidence.  Nor  woiild  his 
sureties  on  his  official  bond,  be  liable  for  any  damages  arising 
from  any  error  or  mistake  in  sach  abstract. 

Abstract. — The  value  of  such  an  abstract  and  certificate, 
would  depend  upon  the  skill  and  integrity  of  the  party  making 
the  same,  whether  prepared  by  the  recorder,  or  any  other  person. 


No.   119. 

ABSTRACT. 

S.  W.  qr.  S.  W.  qr.  Sec.  10,  Tp.  84,  N.  R.  3,  W.  ofUh  P.  M. 


Grantors. 


Grantees, 


Date  of 
instrument, 


Date  of 
filing. 


Character 

instrument. 

0 

o 

tr. 
0. 

Remarks. 


United  StatesI John  Doe    .  jMar.  10, '50.1 

John  Doe  .  iRichard  Roe  JApril  5,  '54. 'April  10, '54. 
Richard  Roe  |  John  Dunn  .  I  May  7,  'CO.!  May  8,  'GO. 
J.  Dunn, <r///jr  Enoch  Grubb  June  1,    '74.  June    1,  '74. 


John  Doe    • 
J.  'Dwc\n,etux 


James  Mann  [April  20,  50 


Richard  Roe 


May   7,  'CO. 


April  20, '50. 


May  8,  '60. 


Patent  .    . 
W'rr'tyd'd 


Mortgage  . 


5  1401 

10  4201 
20  502 


C  Satisfied 
5  210N   in  full, 

(  Satisfied 
12]  25^^  in  full. 
I  iM'yS, '62 


Vl.     FEES  AND  COMPENSATION  OF  THE  RECORDER. 

In  addition  to  office,  stationery  and  books  to  be  furnished  by 
the  count}-,  the  recorder  is  entitled  to  the  following  fees,  as  pro- 
vided by  the  Code: 

Fees. — Section  3792.  The  recorder  shall  be  entitled  to  charge  and  receive  the 
following  fees : 

For  recording  each  instrument  containing  four  hundred  words,  fifty  cents; 
For  every  additional  hundred  words,  or  fraction  thereof,  ten  cents. 


ADDITIONAL   DUTIES.  281 

In  addition  to  which  he  is  entitled  to  ten  cents  for  every  one 
hundred  words  for  making  a  copy  of  the  records  of  his  office,  and 
certifying  the  same.     Code,  Sec.  3819. 

VII.     ADDITIONAL  DUTIES. 

The  Session  Laws  of  1874  provide  further  in  relation  to  the 
Recorder: 

Not  to  admit  plats  of  city  or  town  unless  free  from 

incumbrance. — Whenever  any  person  or  corporation  shall  lay 
out  any  parcel  of  land  into  town  or  city  lots,  such  proprietor 
shall  procure  a  certified  statement  from  the  recorder  of  deeds, 
that  the  title  in  fee  to  said  land  is  in  such  proprietor,  and  that 
the  same  is  free  from  every  incumbrance,  which  shall  be  filed 
with  the  recorder  of  deeds  before  the  plat  of  the  said  town  or 
city  lots  shall  be  admitted  to  record  or  of  any  validity.  Session 
Laws  1874,  Chap.  25. 

In  counties  having  two  county  seats:  to  attend  tax 

sales . — Where  there  are  two  county  seats,  the  recorder  or  his 
deputy  must  attend  the  sale  of  lands  for  delinquent  taxes.  Sess. 
Laws  1874,  Chap.  46. 

Duties  relating  to  savings  banks. — These  are  fully'^set 
forth  in  Chap.  60,  Session  Laws  of  1874. 


283  THB   SURVEYOR. 


CHAPTEK  XXXY. 


THE  SURVEYOR. 

I.     ELECTION— QUALIFICATION,  ETC. 

It  will  be  seen  by  reference  to  the  general  provisions  of  the 
Code,  in  the  first  chapter  of  this  treatise,  that  the  surveyor  is 
elected  at  the  general  election  in  each  odd-numbered  year,  and  of 
course  holds  his  office  for  the  term  of  two  years,  unless  there 
should  be  a  vacancy  for  some  of  the  causes  provided  by  the 
statute. 

Qlialificatioil :  dc])Uty,  etc. — Those  statutes  also  provide  for 
ths  (jualification,  appointment  of  deputy,  etc.  For  the  requisite 
forms,  and  directions  in  such  cases,  reference  may  be  had  to  these 
subjects  set  forth  in  treating  of  the  office  of  the  clerk. 

Increasing  iinportaiice   of  the   office. — The    office  of 

county  surveyor  is  growing  in  importance  and  responsibility,  and 
is  likely  to  advance  in  these  respects,  with  the  improvement  and 
increase  in  value  of  our  real  estate. 

Important  private  interests  frequently  depend  on  the  skill  and 
integrity  of  the  surveyor;  and  in  view  of  this,  it  becomes  his  duty 
to  acquire  a  practical  and  scientific  knowledge  of  the  profession, 
and  an  acquaintance  with  the  rules  and  instructions  furnished  to 
surveyors  of  our  public  lands,  at  the  time  of  the  original  survey 
thereof. 

II.     HIS  DUTIES  GENERALLY. 

Provisions  of  the  Code. — The  Code  provides  in  reference 
to  the  duties  of  the  surveyor  as  follows: 

Duties. — Section    369.    The  county  surveyor  shall  malce  all  surveys  of  land 


DUTIES   OP   SUKVETOR,  283 

within  his  county  which  he  may  be   called  upon   to  make,  and  his  surveys  shall  be 
held  as  presumptively  correct. 

Sec.  370.  The  field-notes  and  plats  made  by  the  county  surveyor  shall  be  tran- 
scribed into  a  well  bound  book  under  the  supervision  of  the  surveyor,  when  desired 
by  a  person  interested  and  at  his  expense. 

Field-notes. — Sec.  371.  Previous  to  making  any  survey,  he  shall  furnish  himself 
with  a  copy  of  the  field-notes  of  the  original  survey  of  the  same  land,  if  there  be  any 
in  the  ofEce  of  the  county  auditor,  arid  his  survey  shall  be  made  in  accordance 
therewith. 

Corners. —  Sec.  372.  He  is  required  to  establish  the  corners  by  taking  bearing 
trees  and  noting  particularly  their  course  and  distance,  but  if  there  be  no  trees  within 
reasonable  distance,  the  corners  are  to  be  marked  by  stones  firmly  placed  in  the 
earth,  or  by  mounds. 

Bules. — Sec.  373.  In  the  re-survey  and  sub-divisions  of  lands  by  county  survey- 
ors, their  deputies,  or  other  persons,  the  rules  prescribed  by  acts  of  congress  and  the 
instructions  of  the  secretary  of  the  interior,  shall  be  in  all  respects  followed. 

Plat  and  copy  evidence. — Sec.  374.  The  county  surveyor  shall,  when  requested, 
furnish  the  person  for  whom  the  survey  is  made  with  a  copy  of  the  field-notes  and 
plat  of  the  survey,  and  such  copy  certified  by  him,  and  also  a  copy  from  the  record, 
certified  uy  the  county  auditor,  with  the  seal,  shall  be  presumptive  evidence  of  the 
survey,  and  of  the  facts  herein  required  to  be  set  forth,  and  which  are  stated  accord- 
ingly, between  those  persons  who  join  in  requesting  it,  and  any  other  person  then 
concerned,  who  has  reasonable  notice  that  such  a  survey  is  to  be  made  and  the  time 
•thereof. 

Book  furnished. — Sec.  37.5.  The  board  of  supervisors  is  required  to  furnish  a 
substan'ial,  well  bound  book,  in  which  the  field-notes  and  plats  made  by  the  county 
surveyor  may  be  recorded. 

Flat:  what  to  show. — Sec.  376.  The  plat  and  record  shall  show  distinctly  of 
what  piece  of  land  it  is  a  survey;  at  whose  personal  request  it  was  made,  the  names 
of  the  chainmen,  and  that  they  were  approved  and  sworn  by  the  surveyor,  and  the 
date  of  the  survey;  and  the  courses  shall  be  taken  according  to  the  true  meridian,  and 
the  variation  of  the  magnetic  needle  from  the  true  meridian  stated. 

Chainmen. — Sec.  377.  The  necessary  chainmen  and  other  persons  must  be 
employed  by  the  person  requiring  the  survey  done,  unless  otherwise  agreed;  but  the 
chainmen  must  be  disinterested  persons  and  approved  of  by  the  surveyor,  and  sworn 
by  him  to  measure  justly  and  impartially  to  the  best  of  their  knowledge  and  ability. 

Administer  oaths. — Sec.  378.  County  surveyors,  when  establishing  defaced  or 
lost  land  corners  or  lines,  may  issue  subpoenas  for  witnesses  and  administer  oaths  to 
them,  and  all  fees  for  service  of  officers  and  attendance  of  witnesses  shall  be  the  same 
as  in  proceedings  before  justices  of  the  peace. 

OATH  TO  CHALVMEN. 
No.  ISO. 

You,  and  each  of  you,  do  solemnly  swear  that  you  will,  as 
chainmen,  measure  justly  and  impaitiuUy,  the  land  now  about  to 
be  surveyed,  to  the  Ijest  of  your  knowledge  and  al)ility.  So  help 
you  God. 

SuI)|)aMIJlS  for  witnesses. — When  it  becomes  necessary  to 
issue  subpcxinas  for  witnesses,  to  establish  defaced  or  lost  corners, 


284  THE   STJEVEYOE. 

or  lines,  the  usual  form  of  subpoenas  from  Justices'  Courts  may 
be  used,  signed  by  the  surveyor,  and  served  in  the  same  manner 
as  subpoenas  from  said  courts. 

OATH  TO   WITNESS  TO  ESTABLISH  CORNER. 
No.  121. 

You,  and  each  of  3'ou,  do  solemnly  swear  (or  affirm,^  that  you 
will  true  answers  make  to  such  questions  as  may  be  put  to  you, 
touching  the  lost  corner  at  the  ....  corner  of  the  ....  quarter  of 
section  ..,  township  .  .,  north  (or  south,)  range  .  .,  west  of  the 
5th  principal  meridian.     So  help  you  God. 

Fees  of  officers  and  witnesses.— The  fees  of  officers  and 

witnesses  on  such  investigations,  are  the  same  as  in  proceedings 
before  justices  of  the  peace;  which  would  be  fifty  cents  a  da}'  for 
the  witnesses,  and  for  travel  each  way  five  cents  a  mile;  and  for 
the  constable,  in  serving  the  subpoenas,  fifteen  cents  for  each 
person  served,  beside  mileage  going  and  returning,  five  cents,  a 
mile.  These  fees  should  be  paid  by  the  party  requesting  the 
survey. 

Til.     EVIDENCE. 

Certificate  of  tlie  surveyor. — The  certificate  of  the  sur- 
veyor to  the  plat  and  field-notes,  may  be  in  the  following  form: 

SrEVEYOll'S  CERTIFICATE. 
No.  1S2. 

State  of  Iowa, 
....    County. 

I,  A  B,  surveyor  of  said  county,  hereby  certify  that  the  forego- 
ing is  a  copy  of  the  plat  and  field-notes  of  land  surveyed  by  me, 
for  C  D  and  E  F,  who  joined  in  requesting  it.  Said  survey  was 
made  on  the  ....  day  of  . . . .,  18 . . 

Dated  this  ....  day  of  . . . .,  18. . 

A . . . .   B . . . . ,  Surveyor. 

Copy  of  the  field-notes  and  plat  as  evidence.— The 

Code  provides  in  reference  to  a  certified  copy  of  the  plat  and 
field-notes  as  follows: 

Field-notes  and  plats. — Section  3701.  A  copy  of  the  field-notes  of  any  sur- 
veyor, or  a  plat  made  by  him  and  certified  under  oath  as  correct,  may  be  received  as 
evidence  to  show  the  shape  or  dimensions  of  a  tract  of  land,  or  any  other  fact  whose 
ascertainment  requires  only  the  exercise  of  scientific  skill  or  calculation. 


RULES  AND   INSTKUCTIONS.  285 

IV.    RULES  x\ND  INSTRUCTIONS. 
Rules  to  be  observed  by  surveyors. — It  will  be  observed 

that  by  the  provisions  of  Section  373  of  the  Code,  the  surveyor 
in  the  re-survey  and  sub-divisions  of  lands,  the  rules  prescribed 
by  acts  of  congress,  and  the  instructions  of  the  Secretary  of  the 
Interior,  shall  in  all  respects  be  followed.  It  is,  therefore,  impor- 
tant for  surveyors  to  know  what  these  acts  and  instructions  are. 
No  surveyor  can  properly  discharge  his  duty,  without  a  knowl- 
edge of  the  original  method  of  surveying  our  public  lands. 

Instructions  of  the  Secretary  of  the  Interior. — The 

following  are  the  more  important  instructions  of  the  Secretary  of 
the  Interior,  relating  to  the  original  survey  of  the  public  lands, 
adopted  February  12,  1855,  and  Approved  by  act  of  Congress, 
May  30th,  18G2. 

These  instructions  were  a  revision  of  earlier  surveying  instruc- 
tions of  the  Department;  and  the  original  surveys  of  Iowa,  and 
other  Western  States,  were  made  in  accordance  with  them. 

System  of  Rectangular  Surveying.— 1.  The  public  lands  of  the  United  States 
are  ordinarily  surveyed  into  rectangular  tracts,  bounded  by  lines  conforming  to  the 
cardinal  points. 

2.  The  public  lands  are  laid  off,  in  the  first  place,  into  bodies  of  land  of  six 
miles  square,  called  townships,  containing  as  near  as  may  be,  23,040  acres.  The 
townships  are  sub-divided  into  thirty-six  tracts,  called  sections,  of  a  mile  square,  each 
containing,  as  near  as  may  be,  640  acres.  Any  number  or  series  of  contiguous  town- 
ships, situate  north  or  south  of  each  other,  constitute  a  range. 

The  law  requires  that  the  lines  of  the  public  surveys  shall  be  governed  by  the  true 
meridian,  and  that  the  townships  shall  be  six  miles  square — two  things  involving  in 
connj*ction  a  mathematical  impossibility — for,  strictly  to  conform  to  the  meridian 
necessarily  throws  the  township  out  of  square,  by  reason  of  the  convergency  of  meri- 
dians, and  hence,  by  adhering  to  the  true  meridian,  results  the  necessity  of  departing 
from  the  strict  requirements  of  law,  as  respects  the  precise  area  of  town.ships,  and  the 
sub-divisional  parts  thereof,  the  townships  assuming  something  of  a  trapezodial  form, 
which  inequality  develops  itself  more  and  more  as  such,  the  higher  the  latitude  of  the 
surveys.  It  is,  doubtless,  in  view  of  these  circumstances,  that  the  law  provides  (sec 
section  2,  of  the  act  of  May  18,  1790,)  that  the  sections  of  a  mile  square  shall  contain 
the  quantity  of  six  hundred  and  forty  acres,  as  nearly  as  may  be;  and,  moreover,  pro- 
vides, (sec  section  3,  of  the  act  of  10th  of  May,  1800.)  in  the  following  words  :  "And 
in  all  cases  where  the  exterior  lines  of  the  townships  thus  to  be  sub-divided  into  sec- 
tions or  half-sections,  shall  exceed,  or  shall  not  extend  six  miles,  the  excess  or 
deficiency  shall  be  specially  noted,  and  added  to  or  deducted  from  the  western  or 
northern  ranges  of  sections  or  half-sections  in  such  township,  according  as  the  error 
may  be  in  running  the  lines  from  east  to  west,  or  from  south  to  north;  tiie  sections 
and  half-sections  bounded  on  tlie  northern  and  western  lines  of  such  townships,  shall 


286  THE   SURVEYOR. 

be  sold  as  containing  only  the  quantity  expressed  in  the  returns  and  plats,  respec- 
tively, and  all  others  as  containing  the  complete  legal  quantity." 

The  accompanying  diagram,  marked  "A,"  will  serve  to  illustrate  the  method  of 
running  out  the  exterior  lines  of  townships,  as  well  on  the  north  ar.  on  the  south  side 
of  tlie  base  line;  and  the  order  and  mode  of  sub-dividing  townships  will  be  found 
illustrated  in  the  accompanying  specimen  field-notes,  conforming  with  the  township 
diagram  "  B."  The  method  here  presented  is  designed  to  insure  a  full  compliance 
with  all  the  requirements,  meaning,  and  intent  of  the  surveying  laws  as,  it  is  believed, 
is  practicable. 

The  section  lines  are  surveyed  from  south  to  north  on  true  meridans,  and  from 
east  to  west  in  order  to  throw  the  excesses  or  deficiencies  in  measurement  on  the 
north  and  west  sides  of  the  township,  as  required  by  law. 

3.  The  townships  are  to  bear  numbers  in  respect  to  the  base  line  eitlier  north 
or  south  of  it;  and  the  tiers  of  townships,  called  "  ranges,"  will  bear  numbers  in 
respect  to  the  meridian  line,  according  to  their  relative  position  to  it,  either  on  the 
east  or  west. 

4.  The  thirty-six  sections  into  which  a  township  is  sub-divided  are  numbered, 
commencing  with  number  one  at  the  northeast  angle  of  the  township,  and  proceeding 
west  to  number  six,  and  thence  proceeding  east  to  number  twelve,  and  so  on,  alter. 
nately,  until  the  number  thirty-six,  in  the  southeast  angle. 

5.  Standard  Parallels,  (usually  called  correction  lines,)  are  established  at  stated 
intervals,  to  provide  for  or  counteract  the  error  that  otherwise  would  result  from  the 
convergency  of  meridians,  and  also  to  arrest  error  arising  from  inaccuracies  in  meas- 
urements on  meridian  lines,  which,  however,  must  ever  be  studiously  avoided.  On 
the  north  of  the  principal  base  line,  it  is  proposed  lo  have  these  standards  run  at  dis- 
tances of  every /oar  townships,  or  twenty-four  miles,  and  on  the  south  of  the  principal 
base,  at  distances  of  every yft^tf  townships,  or  thirty  miles. 

Of  measurenents,  chaining  and  marking. — 1.  Where  uniformity  in  the  varia- 
tion of  the  needle  is  not  found,  the  public  surveys  must  be  m^^de  with  an  instrument 
operating  independently  of  the  magnetic  needle.  Burts'  Improved  Solar  Compass, 
or  other  instrument  of  equal  utility,  must  be  used  of  necessity  in  such  cases;  and  it 
is  deemed  best  that  such  instrument  should  be  used  under  all  circumstances. 

Where  the  needle  can  be  relied  on,  however,  the  ordinary  compass  may  be  used 
in  sub-dividing  and  meandering. 

2.  The  township  lines,  and  the  sub-division  lines,  will  usually  be  measured  by  a 
two-pole  chain  of  thirty-three  feet  in  length,  consisting  of  fifty  links,  and  each  link 
being  seven  inches  and  ninety-two  hundredths  of  an  inch  long.  On  uniform  and 
level  ground,  however,  the  four-pole  chain  may  be  used.  Your  measurements  will, 
however,  always  be  represented  according  to  the  four-pole  chain  of  one  hundred 
links.  The  deputy  surveyor  must  also  have  with  him  a  measure  of  the  standard 
chain,  wherewith  to  compare  and  adjust  the  chain  in  use,  from  day  to  day,  with 
punctuality  and  carefulness;  and  must  return  such  chain  to  the  Surveyor-General's 
office  for  examination  when  his  work  is  completed. 

Of  tally  pins. — 3.  You  will  use  eleven  tally  pins  made  of  steel,  not  exceeding 
fourteen  inches  in  length,  weighty  enough  towards  the  point  to  make  them  drop 
perpendicularly,  and  having  a  ring  at  the  top,  in  which  is  to  be  fixed  a  piece  of  red 
cloth,  or  something  else  of  conspicuous  color,  to  make  them  readily  seen  when  stuck 
in  the  ground. 

Process  of  chaining. — 4.  In  measuring  lines  with  a  two-pole  chain,  every  five 
chains  are  called  "  a  tally,"  because  at  that  distance  the  last  of  the  ten  tally  pins  with 


RULES    AND    IXSTRUCTIONS.  287 

which  the  forward  chainman  set  out  will  have  been  stuck.  He  then  cries  "tally;" 
which  cry  is  repeated  by  the  other  chainman,  and  each  registers  the  distance  by 
sl'-pping  a  thimble,  button,  or  ring  of  leather,  or  something  of  the  kind,  on  a  belt 
worn  for  that  purpose,  or  by  some  other  convenient  method.  The  hind  chainman 
then  comes  up,  and  having  counted  in  the  presence  of  his  fellow  the  tally  pins  which 
he  has  taken  up,  so  that  both  may  be  assured  that  none  of  the  pins  have  been  lost,  he 
then  takes  the  forward  end  of  the  chain,  and  proceeds  to  set  the  pins.  Thus  the 
chainmen  alternately  change  places,  each  setting  the  pins  that  he  has  taken  up,  so 
that  one  is  forward  in  all  the  odd,  and  the  other  in  all  the  even  tallies.  Such  proce- 
dure, it  is  believed,  tends  to  insure  accuracy  in  measurement,  facilitates  the  recollec- 
tion of  the  distances  to  objects  on  the  line,  and  renders  a  miss-tally  almost 
impossible. 

Leveling  the  chain  and  plumbing  the  pins. — 5.  The  length  of  every  line  you 
run  is  to  be  ascertained  by  precise  horizontal  measurement,  as  nearly  approximating 
to  an  air  line  as  is  possible  in  practice  upon  the  earth's  surface.  This  all  important 
object  can  only  be  attained  by  a  rigid  adherence  to  the  three  following  observances  : 

(1.)  Ever  keeping  the  chain  stretched  to  its  utmost  degree  of  tension  on  even 
ground. 

(2.)  On  uneven  ground,  keeping  the  chain  not  only  stretched  as  aforesaid,  but 
horizontally  leveled.  And  when  ascending  and  descending  steep  ground,  hills,  or 
mountains,  the  chain  will  have  to  be  shortened  Xo  one-half  its  length,  (and  sometimes 
more,)  in  order  accurately  to  obtain  the  true  horizontal  measure. 

(3.)  The  careful  plumbing  of  the  tally  pins,  so  as  to  attain  precisely  the  spot  where 
they  should  be  stuck.  The  more  uneven  the  surface,  the  greater  the  caution  needed 
to  set  the  pins. 

Marking  lines. — fi.  All  lines  on  which  are  to  be  established  the  legal  comer 
boundaries  are  to  be  marked  after  this  method,  viz :  Those  trees  which  may  intercept 
your  line  must  have  two  chops  or  notches  cut  on  each  side  of  them,  without  any 
other  marks  whatever.  These  are  called  ''  sight  trees,"  "  line  trees,"  or  "station 
trees." 

A  sufficient  number  of  other  trees  standing  nearest  to  your  line,  on  either  side  of 
it,  are  to  be  blazed  on  two  sides  diagonally,  or  quartering  towards  the  line,  in  order 
to  render  the  line  conspicuous,  and  readily  to  be  traced,  the  blazes  to  be  opposite 
each  other,  coinciding  in  direction  with  the  line  where  the  trees  stand  very  near  it, 
and  to  approach  nearer  each  other  the  further  the  line  passes  from  the  blazed  trees. 
Due  care  must  ever  be  taken  to  have  the  lines  so  well  marked  as  to  be  readily  fol- 
lowed. 

On  trial  or  random  lines. — The  trees  are  not  to  be  blazed,  unless  occasionally 
from  indispcn.sable  necessity,  and  then  it  must  be  done  so  guardedly  as  to  prevent 
the  possibility  of  confounding  the  marks  of  the  trial  Hne  with  the  true.  But  bushes 
and  limbs  of  trees  may  be  lopped,  and  stakes  set  on  the  trial  or  random  line  at  every 
fen  chains  to  enable  the  surveyor  an  his  return  to  follow  and  correct  the  trial  line,  and 
establish  therefrom  the  true  line.  To  prevent  confusion,  the  temporary  stakes  set  on 
the  trial  or  random  lines  must  be  pulled  tip  when  the  surveyor  returns  to  establish  the 
true  line. 

Insuperable  objects  on  line:  witness  points.— 7.  Under  circumstances  where 
your  course  is  obstructed  by  impassable  obstacles,  such  as  ponds,  swamps,  marshes, 
lakes,  rivers,  creeks,  etc.,  you  will  prolong  the  line  across  such  obstacles  by  taking  the 
necessary  right-angle  off-sets;  or,  if  such  be  inconvenient,  by  a  traverse  or  trigonom- 
etrical operation,  until  you  regain  the  linn  on  the  opposite  side.  And  in  case  a  north 
and  south,  or  a  true  east  and  west  line  is  regained  in  advance  of  any  such  obstacle 


288  THE    SURVEYOR. 

you  will  prolong  and  mark  the  line  back  to  the  obstacle  so  passed,  and  state  all  the 
particulars  in  relation  thereto  in  your  field-book.  And  at  the  intersection  of  lines 
with  both  margins  of  impassable  obstacles  you  will  establish  a  witness  point,  ^for  the 
purpose  of  perpetuating  the  intersections  therewith,)  by  setting  a  post,  and  giving  in 
your  field-book  the  course  and  distance  therefrom  to  two  trees  on  opposite  sides  of 
the  line,  each  of  which  trees  you  will  mark  with  a  blaze  and  notch  facing  the  post; 
but  on  the  margins  of  navigable  water-courses,  or  navigable  lakes,  you  will  mark  the 
trees  with  the  proper  number  of  the  fractional  section,  township,  and  range. 

The  best  marking  tools  adapted  to  the  purpose  must  he  provided  for  marking 
neatly  and  distinctly  all  the  letters  and  figures  required  to  be  made  at  corners;  and, 
the  deputy  is  to  have  always  at  hand  the  necessary  implements  for  keeping  his  mark- 
ing irons  in  order;  for  which  puipose  a  rat-tail  file  and  a  small  whetstone  will  be 
found  indispensable. 

EstablisMng  corner  boundaries. -To  procure  the  faithful  execution  of  this  por- 
tion of  a  surveyor's  duty  is  a  matter  of  the  utmost  importance.  After  a  true  cours- 
ing, and  most  exact  measurements,  the  corner  boundary  is  the  consummation  of  the 
work,  for  which  all  the  previous  pains  and  expenditures  have  been  incurred.  If, 
therefore,  the  corner  boundary  be  not  perpetuated  in  a  permanent  and  workman-like 
manner,  the  great  aim  of  the  surveying  service  will  not  have  been  attained.  A  boun- 
dary corner,  in  a  timbered  country,  is  to  be  a  tree,  if  one  be  found  at  the  precise  spot ; 
and  if  not,  ^  post  is  to  be  planted  thereat ;  and  the  position  of  the  corner  post  is  to  be 
indicated  by  trees  adjacent,  the  angular  bearings  and  distances  of  which  from  the 
corner  are  facts  to  be  ascertained  and  registered  in  your  field  book.  (See  article, 
"  Bearing  Trees.") 

In  a  region  where  stone  abounds,  the  corner  boundary  will  be  a  small  monument  of 
stones  alongside  of  a  single  marked  stone  for  a  township  corner,  and  a  single  stone 
for  all  other  corners. 

In  a  region  where  timber  is  not  near,  and  stone  not  found,  the  comer  will  be  a 
mound  of  earth,  of  prescribed  size,  varying  to  suit  the  case. 

The  following  are  the  different  points  for  perpetuating  corners,  viz: 

1.  For  township  boundaries,  at  intervals  of  every  six  miles. 

2.  For  section  boundaries,  at  intervals  of  every  mile,  or  80  chains. 

3.  For  quarter-section  boundaries,  at  intervals  of  every  half  mile,  or  40  chains. 
Exceptions,  however,  occur  on  east  and  west  lines,  as  explained  hereafter. 

[The  half  quarter-section  boundary  is  not  marked  in  the  field,  but  is  regarded  by 
the  law  as  a  point  intermediate  between  the  half-mile  or  quarter-section  corners. 
See  act  of  24th  of  April,  1820,  entitled  "  an  act  making  further  provision  for  the  sale 
of  the  public  lands,"  which  act  refers  to  the  act  of  Congress  passed  on  the  11th  of 
February,  1805,  entitled  "an  act  concerning  the  mode  of  surveying  the  public  lands 
of  the  United  States,"  for  the  manner  of  ascertaining  the  comers  and  contents  of 
half  quarter-sections.  The  sub-division  of  the  half  quarter-section  into  quarter  quar- 
ter-sections is  authorized  by  "an  act  supplementary  to  the  several  laws  fcr  the  sale 
of  the  public  lands."     Approved,  April  5,  18.32.] 

4.  Meander  Corner  Posts  are  planted  at  all  those  points  where  the  township  or 
section  lines  intersect  the  banks  of  such  rivers,  bayous,  lakes,  or  islands,  as  are  by 
law  directed  to  be  meandered. 

The  courses  and  distances  on  meandered  navigable  streams  govern  the  calculations 
wherefrom  are  ascertained  the  true  areas  of  the  tracts  of  land  (sections,  quarter-sec- 
tions, etc.,)  known  to  the  law  ^s,  fractional,  and  binding  on  such  streams. 

Manner  of  establishing  corners  by  means  of  posts. — Township,  section,  or 
mile  corners,  and  quarter-section  or  half-mile  corners,  will  be  perpetuated  by  planting 


RULES   ASH   INSTRUCTIONS.  289 

a  post  at  the  place  of  the  corner,  to  be  formed  of  the  most  durable  wood  of  the  forest 
at  hand. 

The  posts  must  be  set  in  the  earth  by  digging  a  hole  to  admit  them  iwo  feet  deep, 
and  must  be  very  securely  rammed  in  with  earth,  and  also  with  stone,  if  any  be 
found  at  hand.  The  portion  of  the  post  which  protrudes  above  the  earth  must  be 
squared  off  sufficiently  smooth  to  admit  of  receiving  the  marks  thereon,  to  be  made 
with  appropriate  marking  irons,  indicating  what  it  stands  for.  Thus  the  sides  of 
township  corner  posts  should  be  square  at  least /<7»r  inches,  (the  post  itself  h&\n%  five 
inches  in  diameter,)  and  must  protrude  two  feet,  at  least,  above  the  ground ;  the 
sides  of  section  corner  posts  must  be  square  at  least  three  inclus,  (the  post  itself 
being  four  inches  in  diameter,  and  protrude  two  feet  from  the  ground ;  and  the 
quarter-section  corner  posts  and  meander  corner  posts  must  be  three  inches  wide,  pre- 
senting flattened  surfaces,  and  protruding  two  feet  from  the  ground. 

Where  a  township  post  is  a  comer  common  Xofour  townships,  it  is  to  be  set  in  the 
earth  diagonally,  thus: 

N. 
W.   •  *  •    E- 


On  each  surface  of  the  post  is  to  be  marked  the  number  of  the  particular  township, 
and  its  range,  which  it  faces.  Thus,  if  the  post  be  a  common  boundary  to  four 
townships — say  one  and  two,  south  of  the  base  line,  of  range  one,  west  of  the  meri- 
dian ;  also  to  townships  one  and  two,  south  of  the  base  line,  of  range  two,  west  of  the 
meridian,  it  is  to  be  marked  thus: 


(      R.  1  W. 

From  N,  to  E. 

T.  1.    S. 

(     S.  31. 

r        2w. 

From  N.  to.  W.     ■ 

1  s. 

1          36 

■)  f  1  W.) 

\  From  E.    to  S.      -^  2     S.  [• 

2  W. ") 


2 
From  W.  to  S.      ^  2 


These  marks  are  not  only  to  be  distinctly  but  neatly  cut  into  the  wood,  at  least  the 
eighth  of  an  inch  deep;  and  to  make  them  yet  more  conspicuous  to  the  eye  of  the 
anxious  explorer  the  deputy  must  apply  to  all  of  them  a  streak  of  red  chalk. 

Section  or  mile  posts,  being  corners  of  sections,  and  where  such  are  common  to 
_/b«r  sections,  are  to  be  set  diagonally  in  the  earth,  (in  the  manner  provided  for  town- 
ship comer  posts;)  and  on  each  side  of  the  squared  surfaces,  (made  smooth  as  afore- 
said, to  receive  the  marks,)  is  to  be  marked  the  appropriate  number  of  the  particular 
one  oi^^  four  sections,  respectively,  which  such  %\Az  faces;  also  on  one  side  thereof 
are  to  be  marked  the  numbers  of  its  township  and  range;  and  to  make  such  marks 
yet  more  conspicuous,  in  manner  aforesaid,  a  streak  of  red  chalk  is  to  be  applied. 

In  every  township,  subdivided  into  thirty-six  sections,  there  are  twenty-five  interior 
section  corners,  each  of  which  will  be  common  to  four  sections. 

A  quarter-section,  or  half-mile  post,  is  to  have  no  other  mark  on  it  than  a  i  .S.,  to 
indicate  what  it  stands  for. 

Notching  corner  posts. — Township  corner  posts,  common  to  four  townships,  are 
to  be  notched  with  six  notches  on  each  of  the  four  angles  of  the  squared  part  set  to 
the  cardinal  pomis. 

19 


290  THE   SURVEYOR. 

All  mile  posts  on  township  lines  must  have  as  manj'  notches  on  them,  on  two 
opposite  angles  thereof,  as  they  are  miles  distant  from  the  township  corners,  respec- 
tively. Each  of  the  posts  at  the  corners  of  sections  in  the  interior  of  a  township 
must  indicate  by  a  number  of  notches  on  each  of  its  four  corners  directed  to  the  car- 
dinal points,  the  corresponding  number  of  miles  it  stands  from  the  outlines  of  the 
township.  The  four  sides  of  the  post  will  indicate  the  number  of  the  section  they 
respectively  face.  Should  a  tree  be  found  at  the  place  of  any  corner,  it  will  be 
marked  and  notched  as  aforesaid,  and  answer  for  the  corner  in  lieu  of  a  post,  the 
kind  of  a  tree  and  its  diameter  being  given  in  the  field-notes. 

Bearing  trees. — The  position  of  all  corner  posts,  or  corner  trees  of  whatever 
description  that  may  be  established,  is  to  be  evidenced  in  the  following  manner,  viz: 
From  such  post  or  tree  the  courses  must  be  taken  and  the  distances  measured  to  two 
or  more  adjacent  trees  in  opposite  directions,  as  nearly  as  may  be,  and  these  are 
called  "  bearing  trees."  Such  are  to  be  distinguished  by  a  large  smooth  blaze,  with  a 
notch  at  its  lower  end,  facing  the  corner,  and  in  the  blaze  is  to  be  marked  the  number  of 
the  range,  township,  and  section;  but  at  quarter-section  corners  nothing  but  \  S, 
need  be  marked.  The  letters  B.  T.,  (bearing  tree,)  are  also  to  be  marked  upon  a 
smaller  blaze,  directly  under  the  large  one,  and  as  near  the  ground  as  practicable. 

At  all  township  corners,  and  at  all  section  corners,  on  range  or  township  lines 
/o«r  bearing  trees  are  to  be  marked  in  this  manner,  one  in  each  of  the  adjoining  sec- 
tions. 

At  interior  section  corners, /b«r  trees,  one  to  stand  within  each  of  the  four  sections 
to  which  such  corner  is  common,  are  to  be  marked  in  manner  aforesaid,  if  such  be 
found. 

A  tree  supplying  the  place  of  a  corner  post  is  to  be  marked  in  the  manner  directed 
for  posts;  but  if  such  tree  should  be  a  beech,  or  other  smooth  hark  tree,  the  marks 
may  be  made  in  the  bark,  and  the  tree  notched. 

From  quarter-section  and  meander  corners,  two  bearing  trees  are  to  be  marked, 
one  within  each  of  the  adjoining  sections. 

Where  the  requisite  number  of  "  bearing  trees  "  is  not  to  be  found  at  convenient 
and  suitable  distances,  such  as  are  found  are  to  be  marked  as  herein  directed ;  but  in 
all  such  cases  of  deficiency  in  the  number  of  bearing  trees,  (unless,  indeed,  the  bound- 
ary itself  be  a  tree),  a  quadrangular  trench,  with  sides  oifive  feet,  and  with  the  angles 
to  the  cardinal  points,  must  be  spaded  up  outside  the  comer,  as  a  center,  and  the 
earth  carefully  thrown  on  the  inside,  so  as  to  form  a  range  of  earth  which  will  become 
covered  with  grass,  and  present  a  small  square  elevation,  which  in  after  time  will 
serve  to  mark,  unmistakably,  the  spot  of  the  corner. 

Corner  stones. — Where  it  is  deemed  best  to  use  stones  for  boundaries,  in  lieu  of 
posts,  you  may,  at  any  corner,  insert  endwise  into  the  ground  to  the  depth  of  seven 
or  eight  inches,  a  stone,  the  number  of  cubic  inches  in  which  shall  not  be  less  than 
the  number  contained  in  a  stone  fourteen  inches  long,  twelve  inches  wide,  and  three 
inches  thick — equal  to  five  hundred  and  four  cubic  inches— the  edges  of  which  must 
be  set  north  and  south,  on  north  and  south  lines,  and  east  and  west,  on  east  and  west 
lines ;  the  dimensions  of  each  stone  to  be  given  in  the  field-notes  at  the  time  of  estab- 
lishing the  corner.     The  kind  of  stone  should  also  be  stated. 

Marking  corner  stones. — Stones  at  township  corners  common  to  four  townships 
must  have  six  notches,  cut  with  a  pick  or  chisel  on  each  edge  or  side  towards  the 
cardinal  points  ;  and  where  used  as  section  corners  on  the  range  and  township  lines, 
or  as  section  corners  in  the  interior  of  a  township,  they  will  also  be  notched  to  cor- 
respond with  the  directions  given  for  notching  posts  similarly  situated. 

Posts  or  stones  at  township  corners  on  the  base  and  standard  lines,  and  which  are 


ETTLES   AND   INSTRUCTIONS.  291 

common  to  two  townships  on  the  north  side  thereof,  six  notches  on  each  of  the  wesf, 
north  and  east  sides  or  edges ;  and  whore  such  stones  or  posts  are  set  for  corners  to 
two  townships  south  of  the  base  or  standard,  six  notches  will  be  cut  on  each  of  the 
west,  south  and  east  sides  or  edges. 

Stones,  when  used  for  quarter-section  corners,  will  have  J  cut  on  them — on  the 
west  side  on  north  and  south  lines,  and  on  the  north  side  on  east  and  west  lines. 

MOUNDS. 

Whenever  bearing  trees  are  not  found,  mounds  of  earth,  or  stone,  are  to  be  raised 
around  posts  on  which  the  corners  are  to  be  marked  in  the  manner  aforesaid.  Where- 
ever  a  mound  of  earth  is  adopted,  the  same  will  present  a  conical  shape ;  but  at  its 
base,  on  the  earth's  surface  a  quadrangular  trench  will  be  dug ;  by  the  "  trench  " 
(here  meant)  is  to  be  understood  a  spade  deep  of  earth  thrown  up  from  the  four  sides 
of  the  lines  outside  the  trench,  so  as  to  form  a  continuous  elevation  along  its  outer 
edge.  In  mounds  of  earth,  common  to  four  townships  or  to  four  sections,  they  will 
present  the  angles  of  the  quadrangular  trench  (diagonally)  towards  the  cardinal 
points.  In  mounds,  common  only  to  two  townships  or  tiuo  sections  the  sides  of  the 
quadrangular  trench  will  face  the  cardinal  points.  The  sides  of  the  quadrangular 
trench  at  the  base  of  a  township  mound  are  to  be  six  feet,  the  height  of  mound  three 
feet. 

At  section,  quarter-section,  and  meander  corners,  the  sides  of  the  quadrangular 
trench  at  base  of  mounds  are  to  be  five  feet,  and  the  conical  height  tiao  and  a  half 
feet. 

Prior  to  piling  up  the  earth  to  construct  a  mound,  there  is  to  be  dug  a  spadeful  or 
two  of  earth  from  the  corner  boundary  point,  and  in  the  cavity  so  formed  is  to  be 
deposited  a  marked  stone,  or  a  portion  of  charcoal,  the  quantity  whereof  is  to  be 
noted  in  the  field-book ;  or  in  lieu  of  charcoal  or  marked  stone  a  charred  stake  is  to 
be  driven  twelve  inches  down  into  such  center  point ;  either  of  those  will  be  a  witness 
for  the  future,  and  whichever  is  adopted,  the  fact  is  to  be  noted  in  the  field-book. 

When  mounds  are  formed  of  earth,  the  spot  from  which  the  earth  is  taken  is  called 
the  "pit,"  the  center  of  which  ought  to  be,  whenever  practicable,  at  a  uniform  dis- 
tance and  in  a  uniform  direction  from  the  center  of  the  mound.  There  is  to  be  a 
"pit"  on  ^a^rA  side  of  every  mound,  distant  eighteen  inches  outside  of  the  trench. 
The  trench  may  be  expected  hereafter  to  be  covered  by  tufts  of  grass,  and  thus  to 
indicate  the  place  of  the  mound,  when  the  mound  itself  may  have  become  obliterated 
by  time  or  accident. 

At  meander  corners,  the  "  pit"  is  to  be  directly  on  the  line,  eight  links  further  from 
the  water  than  the  mound.  Wherever  necessity  is  found  for  deviating  from  these 
rules  in  respect  to  the  "pits,"  the  course  and  distance  to  each  is  to  be  stated  in  the 
field-books. 

Perpetuity  in  the  mound  is  a  great  desideratum.  Informing  it  with  light  alluvial 
soil  the  surveyor  may  find  it  necessary  to  make  due  allowance  for  the  future  settling 
of  the  earth,  and  thus  making  the  mound  more  elevated  than  would  be  necessary  in 
a  more  compact  and  tenacious  soil,  and  increasing  the  base  of  it.  In  so  doing,  the 
relative  proportions  between  the  township  mound  and  other  mounds  is  to  be  preserved 
as  nearly  as  may  be. 

The  earth  is  to  be  pressed  down  with  the  shovel  during  the  process  of  piling  it  up. 
Mounds  are  to  be  covered  with  sod,  grass  side  up,  where  sod  is  to  be  had;  but  in 
forming  a  mound,  sod  is  never  to  be  wrought  up  with  the  earth,  because  sod  decays, 
and  in  the  process  of  decomposing  it  will  cause  the  mound  to  become  porous,  and 
therefore  liable  to  premature  destruction. 


292  THE    SURVEYOR. 

Posts  in  moands. — Must  show  above  the  top  of  the  mound  ten  or  twelve  inches, 
and  be  notched  and  marked  precisely  as  they  would  be  for  the  same  corner  without 
the  mound. 

Mound  memorials. — Beside  the  charcoal  marked  stone  ov  charred  stake,  one  ov 
the  other  of  which  must  be  lodged  in  the  earth  at  the  point  of  the  corner,  the  deputy 
surveyor  is  recommended  to  plant  mid  way  between  each  pit  and  the  trench,  seeds  of 
some  tree,  [those  of  fruit  trees  adapted  to  the  climate  being  always  to  be  preferred,] 
so  that,  in  course  of  time,  should  such  take  root,  a  small  clump  of  trees  mav  possibly 
hereafter  note  the  place  of  the  corner.  The  facts  of  planting  such  seed,  and  the  kind 
thereof,  are  matters  to  be  truthfully  noted  in  the  field-book. 

Witness  mounds  to  township  or  section  comers. — If  a  township  or  section  cor- 
ner, in  a  situation  where  bearing  or  witness  trees  are  not  found  within  a  reasonable 
distance  therefrom,  shall  fall  within  a  ravine,  or  in  any  other  situation  where  the 
nature  of  the  ground,  or  the  circumstances  of  its  locality,  shall  be  such  as  may  pre- 
vent, or  prove  unfavorable  to  the  erection  of  a  mound,  you  will  perpetuate  such  cor- 
ner by  selecting  in  the  immediate  vicinity  thereof,  a  suitable  plot  of  ground  as  a  site 
for  a  bearing  or  witness  mound,  and  erect  thereon  a  mound  of  earth,  in  the  same 
manner,  and  conditioned  in  every  respect,  With  charcoal,  stone,  or  charred  stake 
deposited  beneath,  as  above  directed  ;  and  measure  and  state  in  your-field  book  the 
distance  and  course  from  the  position  of  the  true  corner  of  the  bearing  or  witness 
mound  so  placed  and  erected. 

Double  corners, — Such  comers  are  to  be  nowhere  except  on  the  base  and  stand- 
ard lines,  whereon  are  to  appear  both  the  corners  which  mark  the  intersections  of  the 
lines  which  close  thereon,  and  those  from  which  the  surveys  start  on  the  north.  On 
these  lines,  and  at  the  time  of  running  the  same,  the  township,  section,  and  quarter- 
section  corners  are  to  be  planted,  and  each  of  these  is  a  corner  common  to  two, 
[whether  township  or  section  corners,]  on  the  north  side  of  the  line,  and  must  be  so 
marked. 

The  corners  which  are  established  on  the  standard  parallel,  at  the  time  of  running 
it,  are  to  be  known  as  "  standard  corners,"  and,  in  additon  to  all  the  (?/7//«arj' marks, 
[as  herein  prescribed,]  they  will  be  marked  with  the  letters  S.  C.  Closing  corners 
will  be  marked  with  the  letters  C.  C,  in  addition  to  other  marks. 

The  standard  parallels  are  designed  to  be  run  in  advance  of  the  contiguous  surveys, 
on  the  south  of  them,  but  circumstances  may  exist  which  will  impede  or  temporarily 
delay  the  due  extension  of  the  standard;  and  when,  from  uncontrollable  causes,  the 
contiguous  townships  must  be  surveyed  in  advance  of  the  time  of  extendmg  the 
standard,  in  any  such  event  it  will  become  the  duty  of  the  deputy  who  shall  after- 
ward survey  any  such  standard,  to  plant  thereon  the  double  set  of  corners,  to-wit : 
the  standard  corners,  to  be  marked  S.  C,  and  the  closing  ones,  which  are  to  be 
marked  C.  C;  and  to  make  such  measurements  as  may  be  necessary  to  connect  the 
closing  corners  and  complete  the  unfinished  meridianal  lines  of  such  contiguous  and 
prior  surveys,  on  the  principles  herein  set  forth,  under  the  different  heads  of  "  exterior 
or  township  lines,"  and  of"  diagram  B." 

You  will  recollect  that  the  corners,  [whether  township  or  section  corners,]  which 
are  common  to  two,  (two  townships  or  two  sections,)  are  not  tq>  be  planted  diagonally, 
like  those  which  are  common  to  four,  but  with  the  fiat  sides  facing  the  cardinal 
points,  and  on  which  the  marks  and  notches  are  made  as  usual.  This,  it  will  be  per- 
ceived, will  serve  yet  more  fully  to  distinguish  the  standard  parallels  from  all  other 
lines. 

The  meandering  of  navigable  streams.— 1st.  Standing  with  the  face  looking 
down  stream,  the  bank  on  the  left  hand  is  termed  the    "  left  bank,"  and  that  on  the 


RULES    AND   INSTRUCTIONS.  293 

r/^,%^  hand  the  "right  bank."     These  terms  are  to  be  universally  used  to  distinguish 
the  two  banks  of  a  river  or  stream. 

2d.  Both  banks  of  navigable  rivers  are  to  be  meandered  by  taking  the  courses  and 
distances  of  their  sinuosities,  and  the  same  are  to  be  entered  in  the  field-book. 

At  those  points  where  either  the  township  or  section  lines  intersect  the  banks  of 
a  navigable  stream,  posts,  or  where  necessary,  mounds  of  earth,  or  stone,  are  to  be 
established  at  the  time  of  running  these  lines.  These  are  called  "  meander  corners  ;  " 
and  in  meandering  you  are  to  commence  at  one  of  these  corners  on  the  township 
line,  coursing  the  banks,  and  measuring  the  distance  of  each  course  from  your  com- 
mencing corner  to  the  next  "  meander  corner,"  upon  the  same  or  another  boundary 
of  the  same  township,  carefully  noting  your  intersection  with  all  intermediate  mean- 
der corners.  By  the  same  method  you  are  to  meander  the  opposite  bank  of  the 
same  river. 

The  crossing  distance  between  the  meander  corners  on  same  line  is  to  be  ascertained 
by  triangulation,  in  order  that  the  river  may  be  protracted  with  entire  accuracy.  The 
particulars  to  be  given  in  the  field-notes. 

3d.  You  are  also  to  meander,  in  manner  aforesaid,  all  lakes  and  deep  ponds  of 
the  area  of  twenty-five  acres  and  upward :  also  navigable  bayous;  shallow  ponds, 
readily  to  be  drained,  or  likely  to  dry  up,  are  not  to  be  meandered. 

You  will  notice  all  streams  of  water  falling  into  the  river,  lake,  or  bayou  you  are 
surveying,  stating  the  width  of  the  same  at  their  mouth;  also  all  springs,  noting  the 
size  thereof  and  depth,  and  whether  the  water  be  pure  or  mineral;  also  the  head  and 
mouth  of  all  bayous;  and  all  islands,  rapids,  and  bars  are  to  be  noticed,  with  intersec- 
tions to  their  upper  and  lower  points  to  establish  their  exact  situation.  You  will  also 
note  the  elevation  of  the  banks  of  rivers  and  streams,  the  heights  of  falls  and  cas- 
cades, and  the  length  of  rapids. 

4th.  The  precise  relative  position  of  islands,  in  a  township  made  fractional  by  the 
river  in  which  the  same  are  situated,  is  to  be  determined  trigonometrically — sighting 
to  a  flag  or  other  fixed  object  on  the  island,  from  a  special  and  carefully  measured 
base  line,  connected  with  the  surveyed  lines  on  or  near  the  river  bank,  you  are  to 
form  connection  between  the  meander  corners  on  the  river  to  points  corresponding 
thereto,  in  direct  line,  on  the  bank  of  the  island,  and  there  establish  the  prop)er 
meander  corners,  and  calculate  the  distance  across. 

6th.  In  meandering  lakes,  ponds,  or  bayous,  you  are  to  commence  at  a  meander 
corner  upon  the  township  line,  and  proceed  as  above  directed  for  the  banks  of  a 
navigable  stream. 

Bat  where  a  lake,  pond,  or  bayou  lies  entirely  within  the  township  boundaries,  you 
w-11  commence  at  a  meander  corner  established  in  sub-dividing,  and  from  thence  take 
the  courses  and  distances  of  the  entire  margin  of  the  same,  noting  the  intersection 
With  all  the  meander  comers  previously  established  thereon. 

6th.  To  meander  a  pond  lying  entirely  within  the  boundaries  of  a  section,  )'ou 
will  run  and  measure  two  Imes  thereunto  from  the  nearest  section  or  quarter-section 
comer  on  opposite  hxd^s  of  such  pond,  giving  the  courses  of  such  lines.  At  ecuh  of 
the  points  where  such  lines  shall  intersect  the  margin  of  such  pond,  you  will  establish 
a  witness  point,  by  fixing  a  post  in  the  ground,  and  taking  bearings  to  any  adjacent 
trees,  or,  if  necessary,  raising  a  mound. 

The  relative  position  of  these  points  being  thus  definitely  fixed  in  the  section,  the 
meandering  will  commence  at  one  of  them,  and  be  continued  to  the  other,  noting  tlie 
intersection,  and  thence  to  Ihc  beginning.  The  proceedings  are  to  be  fully  entered 
in  the  field-book. 

7th.     In  taking  the  connection  of  an  island  with  the  main   land,  when  there  is  no 


294  THE   SURVBYOR. 

meander  corner  inline,  opposite  thereto,  to  sight  from,  you  will  measure  a  special 
base  from  the  meander  corner  nearest  to  such  island,  and  from  such  base  you  will 
triangulate  to  some  fixed  point  on  the  shore  of  the  island,  ascertain  the  distance 
across,  and  there  establish  a  special  meander  corner,  whcrefrom  you  will  commence 
to  meander  the  island. 

The  field-notes  of  meanders  you  will  set  forth  in  the  body  of  the  field  book,  according 
to  the  dates,  when  the  work  is  performed,  as  illustrated  in  the  specimen  notes 
annexed.  They  are  to  state  and  describe  particularly  the  meander  corner  from 
which  they  commenced,  each  one  with  which  they  close,  and  are  to  exhibit  the 
meaders  of  each  fractional  section  separately;  following,  and  composing  a  part  of 
such  notes,  will  be  given  a  description  of  the  land,  timber,  depth  of  inundation  to 
which  the  bottom  is  subject,  and  the  banks,  current,  and  bottom  of  the  stream  or 
body  of  water  you  are  meandering. 

9.  No  blazes  or  marks  of  any  description  are  to  be  made  on  the  lines  meandered 
betwe(;n  the  established  corners,  but  the  utmost  care  must  be  taken  to  pass  no  object 
of  topography,  or  change  therein,  without  giving  a  particular  description  thereof  in 
its  proper  place  in  your  meander  notes. 

OF    FIELD-BOOKS. 

'Y\\&  field-notes  afford  the  elements  from  which  the  plats  and  calculations  in  relation 
to  the  public  surveys  are  made.  They  are  the  source  wherefrom  the  description  and 
evidence  of  locations  and  boundaries  are  officially  delineated  and  set  forth.  They 
therefore  must  be  a  faithful,  distinct  and  minute  record  of  every  thing  officially  done 
and  observed  by  the  surveyor  and  his  assistants,  pursuant  to  instructions,  in  relation 
to  running,  measuring,  and  marking  lines,  establishing  boundary  corners,  etc.;  and 
present,  as  far  as  possible,  a  full  and  complete  topographical  description  of  the  country 
surveyed,  as  to  every  matter  of  useful  information,  or  likely  to  gratify  public  curiosity. 

There  will  be  sundry  separate  and  distinct  field-books  of  surveys  as  follows : 

Field-notes  of  the  meridian  and  base  lines,  showing  the  establishment  of  the  tovL'n- 
ship  section  or  mile,  and  quarter-section  ox  half  mile,  boundary  corners  thereon;  with 
the  crossings  of  streams,  ravines,  hills,  and  mountains;  character  of  soil,  timber, 
minerals,  etc. 

Field-notes  of  the  "  standard  parallels,"  or  "  correction  lines,"  will  show  the  estab- 
lishment of  the  township,  section,  and  quarter-section  corners,  beside  exhibiting  the 
topography  of  the  country  on  line,  as  required  on  the  base  and  meridian  lines. 

Field-notes  of  the  exterior  lines  of  townships,  showing  the  establishment  of  corners 
on  lines,  and  the  topography,  as  aforesaid. 

Field-notes  of  the  sub-divisions  of  townships  into  sections  and  quarter-sections. 

The  field-notes  must  in  all  cases  be  taken  precisely  in  the  order  in  which  the  work 
is  done  on  the  ground,  and  the  dateoi  ea^h  day's  work  must  follow  immediately  after 
the  notes  thereof.  The  variation  of  the  needle  must  always  occupy  a  separate  line 
preceeding  the  notes  of  measurements  on  line. 

The  exhibition  of  every  mile  of  surveying,  whether  on  township  or  sub-divisional 
lines,  must  be  complete  in  itself,  and  be  separated  by  a  black  line  drawn  across  the 
paper.  The  description  of  the  surface,  soil,  mineral,  timber,  undergrowth,  etc.,  on 
each  mile  of  line,  is  to  follow  the  notes  of  survey  of  such  line,  and  not  be  mixed  up 
with  them. 

No  abbreviations  of  words  are  allowable,  except  of  such  words  as  are  constantly 
occurring,  such  as  "  sec.  ioT  Section;"  "  in.  diam."  for  inches  diameter;"  "  chs.  (or 
chains;  "  "  IJts."  for  "  linis;  "  "  dist."  for  "  distant,"  etc.  Proper  names  must  never 
be  abbreviated,  however  often  their  recurrence. 


RULES   AND   INSTEUCTIONS.  295 

The  nature  of  the  subject-matter  of  the  field-book  is  to  form  its  title  page,  showing 
the  State  or  Territory  where  such  survey  lies,  by  whom  surveyed,  and  the  dates  of 
commencement  and  completion  of  the  work.  The  second  page  is  to  contain  the 
names  and  duties  of  assistants.  Whenever  a  new  assistant  is  employed,  or  the  duties 
of  any  one  of  them  are  changed,  such  facts,  with  the  reasons  therefor,  are  to  be  stated 
in  an  appropriate  entry  immediately  preceding  the  notes  taken  under  such  changed 
arrangements.  With  the  notes  of  the  exterior  lines  of  townships,  the  deputy  is  to 
submit  a  plat  of  the  lines  run,  on  a  scale  of  two  inches  to  the  mile,  on  which  are  to 
be  noted  all  the  objects  of  topography  on  lines  necessary  to  illustrate  the  notes,  viz: 
the  distances  on  line  at  the  crossings  of  streams,  so  far  as  such  can  be  noted  on  the 
paper,  and  the  direction  of  each  by  an  arrow-head  pointing  down  stream;  also  the 
intersection  of  line  by  prairies,  marshes,  swamps,  ravines,  ponds,  lakes,  hills,  moun- 
tains, and  all  other  matters  indicated  by  the  notes,  to  the  fullest  extent  practicable. 

With  the  instructions  for  making  sub-divisional  surveys  of  townships  into  sections, 
the  deputy  will  be  furnished  by  the  Surveyor-General  with  a  diagram  of  the  exterior 
lines  of  the  townships  to  be  sub-divided,  (on  the  above  named  scale,)  upon  which  are 
carefully  to  be  laid  down  ihe  measurements  of  each  of  the  section  lines  on  such  boun- 
daries whereon  he  is  to  close,  the  magnetic  variation  of  each  mile,  and  the  particular 
description  of  each  corner.  "  P.  in  M."  signifies  post  in  mound.  And  on  such 
diagram  the  deputy  who  sub-divides  will  make  appropriate  sketches  of  the  various 
objects  of  topography  as  they  occur  on  his  lines,  so  as  to  exhibit  not  only  the  points 
on  lines  at  which  the  same  occur,  but  also  the  direction  and  position  of  each  between 
the  lines,  or  within  each  section,  so  that  every  object  of  topography  may  be  properly 
completed  or  connected  in  the  showing. 

These  notes  must  be  distinctly  written  out,  in  language  precise  and  clear,  and 
ftieir  figures,  letters,  words,  and  meaning  are  always  to  be  unmistakable.  No  leaf  is 
lo  h^.  cut  or  mutilated,  and  none  to  be  taken  out,  whereby  suspicion  might  be  created 
that  tha  missing  leaf  contained  matter  which  the  deputy  believed  to  be  to  his  interest 
to  conceal. 

Summary  of  objects  and  data  required  to  be  noted. — 1.  The  precise  length  of 
every  line  run,  noting  all  necessary  oflf-sets  therefrom,  with  the  reason  and  mode 
thereof. 

2.  The  kind  and  d-ameter  of  all  bearing  trees,  with  the  course  and  distance  of 
the  same  from  their  respective  corners;  and  the  precise  relative  position  of  witness 
corners  to  the  true  corners. 

3.  The  kind  of  materials,  (earth  or  stone,)  of  which  mounds  are  constructed — the 
fact  of  their  being  conditioned  according  to  instructions — with  the  course  and  dis- 
tance of  the  pits  from  the  center  of  il-e  mound,  where  necessity  exists  for  deviating 
from  \\i&  general  rule. 

4.  Trees  on  line.  The  name,  diameter,  and  distance  on  line  to  all  trees  which  it 
intersects. 

5.  Intersections  by  line  of  land  objects.  The  distance  at  whicli  the  line  first 
intersects  and  then  leaves  every  settler's  claim  and  improvement;  prairie,  river,  creek, 
or  other  "  bottom;  "  or  swamp,  marsh,  grove,  and  windfall,  with  the  course  of  the 
same  at  both  points  of  intersection;  also  the  distances  at  which  you  begin  to  ascend, 
arrive  at  the  top,  begin  to  descend,  and  reach  the  foot  of  all  remarkable  hills  and 
ridges,  with  their  courses,  and  estimated  height,  in  feet,  abnve  the  level  land  of  the 
surrounding  country,  or  above  the  bottom  lands,  ravines,  or  v.'atcrs  near  which  tliey 
are  situated. 

6.  Intersection  by  line  of  water  objects.  All  rivers,  creeks,  and  smaller  streams  of 
water  which  the  line  crosses;  the  distance  on  line  at  the  points   of  intersection,  ahd 


296  THE   SUKVBYOR. 

their  widths  on  line.      In  cases  of  navigable  streams,  their  widths  will  be  ascertained 
between  the  meander  corners,  as  set  forth  under  the  proper  head. 

7.  Tlie  land's  surface. — Whether  level,  rolling,  broken,  or  hilly. 

8.  The  soil. — Whether  first,  second,  or  third-rate. 

9.  Timber. — The  several  kinds  of  timber  and  undergrowth,  in  the  order  in  which 
they  predominate. 

10.  Bottom  lands. — To  be  described  as  wet  or  dry,  and  if  subject  to  mundation, 
state  to  what  depth. 

11.  S/irtn^s  of  water. — Whether  fresh,  saline,  or  mineral,  with  the  course  of  the 
stream  flowing  from  them. 

12.  Lakes  and  ponds. — Describing  their  banks  and  giving  their  height,  and  also 
the  depth  of  water,  and  whether  it  be  pure  or  stagnant. 

13.  Improvements. — Towns  and  villages;  Indian  towns  and  wigwams;  houses  or 
cabins;  fields  or  other  improvements;  sugar-tree  groves,  sugar-camps;  mill-seals, 
forges,  and  factories. 

14.  Coa/ banks  or  beds; /«ra/ or  turf  grounds;  mine?-als  and  ores,  with  particular 
description  of  the  same  as  to  quality  and  extent,  and  all  dio'gifigs  therefor;  also,  salt 
springs  and  licks.  All  reliable  information  you  can  obtain  respecting  these  objects, 
whether  they  be  on  your  immediate  line  or  not,  is  to  appear  in  the  general  description 
to  be  given  at  the  end  of  the  notes. 

15.  Jioads  and  trails,  with  their  directions,  whence  and  whither. 

16.  Rapids,  cataracts,  cascades,  or  falls  of  water,  with  the  height  of  their  fall  in 
feet. 

17.  Precipices,  caves,  sink-holes,  ravines,  stone-quarries,  ledges  of  rock,  with  the 
kind  of  stone  they  afford. 

18.  Natural  curiosities,  interesting  fossils,  petrifactions,  organic  remains,  flic. 
also,  all  ancient  works  of  art,  such  as  mounds,  fortifications,  embankments,  ditches, 
or  objects  of  like  nature. 

19.  The  variation  of  the  needle  must  be  noted  at  all  points  or  places  on  the  lines 
where  there  is  found  any  material  change  of  variation,  and  the  position  of  such 
points  must  be  perfectly  identified  in  the  notes. 

20.  Beside  the  ordinary  notes  taken  on  line,  (and  which  -.nust  always  be  written 
down  on  the  spot,  leaving  nothing  to  be  supplied  by  memoiy,  the  deputy  will  subjoin 
at  the  conclusion  of  his  book,  such  further  description  or  information  touching  any 
matter  or  thing  connected  with  the  township,  (or  o'.ner  survey),  which  he  may  be 
able  to  afford,  and  may  deem  useful  or  necessr.ry  to  be  known — with  a  general 
description  of  the  township  in  the  aggregate,  as  respects  the  face  of  the  country,  its 
soil  and  geological  features,  timber,  minerah,  water,  etc. 

Swamp  lands. — By  the  act  of  Congresj,  approved  September  28,  1850,  swamp  and 
overflowed  lands,  "  unfit  for  cultivatio'i,"  are  granted  to  the  State  in  which  they  are 
situated.  In  order  clearly  to  define  the  quantity  and  locality  of  such  lands,  the  field- 
notes  of  surveys,  in  addition  to  tha  other  objects  of  topography  required  to  be  noted, 
are  to  indicate  the  points  at  which  you  enter  all  lands  which  are  evidently  subject  to 
such  grant,  and  to  show  the  distinctive  character  of  the  land  so  noted ;  whether  it  is 
a  swamp  or  marsh,  or  otherwise  subject  to  inundation  to  an  extent  that,  without  arti- 
ficial means,  would  render  it  "  unfit  for  cultivation."  The  depth  of  inundation  is  to 
be  stated,  as  determi'ied  from  indications  on  the  trees  where  timber  exists ;  and  its 
frequency  is  to  be  ^et  forth  as  accurately  as  may  be,  either  from  your  own  knowledge 
of  the  general  character  of  the  stream  which  overflows,  or  from  reliable  information 
to  be  obtained  from  others.  The  words  "  unfit  for  cultivation,"  are  to  be  employed 
in  addition  to  the  usual  phraseology  in  regard  to  entering  or  leaving  such  swamps, 


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EULES   AND   INSTRUCTIONS.  297 

marshy,  or  overflowed  lands.  It  may  be  that  sometime  the  margin  of  bottom, 
swamp,  or  marsh,  in  which  such  uncultivable  land  exists,  is  not  identical  with  the 
margin  of  thi;  body  of  land  "  unfit  for  cultivation,"  and  in  such  case;  a  separate  entry 
must  be  made  for  each,  opposite  the  marginal  distance  at  which  they  respectively 
occur. 

Bdt  in  cases  where  lands  are  overflowed  by  artificial  means,  (say,  by  dams  for 
milling,  logging,  or  for  other  purposes,)  you  are  not  officially  to  regard  such  over- 
flow, but  will  continue  your  lines  across  the  same  without  setting  meander  posts, 
stating  particularly  in  the  notes  the  depth  of  the  water,  and  how  the  overflow  was 
caused. 

Exterior  or  township  lines. — The  principal  meridian,  the  base  line  and  the 
standard  parallels  having  been  first  run,  measured,  and  marked,  and  the  corner 
boundaries  thereon  established,  according  to  instructions,  the  process  of  running, 
measuring,  and  marking  the  exterior  lines  of  townships  will  be  as  follows: 

TownsMps  situated  north  of  the  base  line,  and  west  of  the  principal  merid- 
ian.— Commencing  at  No.  1,  (see  figures  on  diagram  A),  being  the  southwest  corner 
of  township  1,  north,  range  1,  west,  as  established  on  the  base  line,  thence  north,  on 
a  true  meridian  line,  four  hundred  and  eighty  chains,  establishing  the  section 
and  quarter-section  corners  thereon,  as  per  instructions,  to  No.  2,  whereat  establish 
the  corner  of  townships  1  and  2,  north,  ranges  1  and  2,  west;  thence  east,  on  a 
random  or  trial  line,  setting  temporary  section  and  quarter  section  stakes,  to 
No.  3,  where  measure  and  note  the  distance  at  which  the  line  intersects  the  eastern 
boundary  north  or  south  of  the  true  or  established  corner.  Run  and  measure  west- 
ward, on  the  true  line,  (taking  care  to  note  all  the  land  and  water-crossings,  etc.,  as 
per  instructions.)  to  No.  4,  which  is  identical  with  No.  2,  establishing  the  section  and 
quarter-section  permanetit  corners  "on  said  line.  Should  it  happen,  however,  that 
such  random  line  fails  short,  or  overruns  in  length,  or  intersects  the  eastern  boundary 
of  the  township  at  more  than  three  chains  and  fifty  links  distance  from  the  true 
corner  thereon,  as  compared  with  the  corresponding  boundary  on  the  south,  (either 
of  which  would  indicate  an  important  error  in  the  surveyiiig,)  the  lines  must  be 
retraced,  even  if  found  necessary  to  remeasure  the  meridianal  boundaries  of  the  town- 
ship, (especially  the  western  boundary,)  so  as  to  discover  and  correct  the  error;  in 
doing  which  the  true  corners  must  be  established  and  marked,  and  the  false  ones 
destroyed  and  obliterated,  to  prevent  confusion  in  future;  diXid  all  the  facts  mnsthe 
distinctly  set  forth  in  tlie  notes.  Thenne  proceed  in  a  similar  manner  from  No.  4  to 
No.  5,  No.  5  to  No.  6,  No.  6  to  No.  7,  and  so  on  to  No.  10,  the  southwest  corner  of 
township  4,  north,  range  1,  west.  Thence  north,  still  on  a  true  meridian  line,  estab- 
lishing the  mile  and  half-mile  corners,  until  reaching  the  standard  parallel  or  correc- 
tion line;  throwing  excess  over,  or  deficiency  under,  four  hundred  and  eighty  chains 
on  the  last  half-mile,  according  to  law,  and  at  the  intersection  establishing  the  "  closing 
corner,"  the  distance  of  whichyrow  the  standard  corner  must  be  measured  and  noted, 
as  required  by  the  instructions.  But  should  it  ever  so  happen  that  some  impassable 
barrier  will  have  prevented  or  delayed  the  extension  of  the  standard  parallel  along 
and  above  the  field  of  present  survey,  then  the  deputy  will  plant,  in  place,  the  corner 
for  the  township,  subject  to  correction  thereafter,  should  such  parallel  be  extended. 

North  of  the  base  line,  and  east  of  the  principal  meridian. — Commence 
at  No.  1,  Ijcing  the  southeast  corner  of  township  1,  north,  range  1,  east,  and  proceed 
as  with  townships  situated  "  north  and  west,"  except  that  the  random  or  uVAWncs 
will  be  run  and  measured  west,  and  the  true  lines  east,  throwing,  tlic  excess  over  or 
deficiency  under  four  hundred  and  eighty  chains  on  the  west  end  of  the   line,  as 


298  THE   SURVEYOB. 

required  by  law  ;  wherefore  the  surveyor  will  commence  his  measurement  with  the 
length  of  the  deficient  or  excessive  half- section  boundary  on  the  west  of  the  town- 
ship, and  thus  the  remaining  measurements  will  all  be  even  miles  ana  half  miles. 

Important  method  of  sub-dividing. — 1.  The  first  mile,  both  of  tl-e  .south  and 
east  boundaries  of  cmcIi  townshii)  you  are  required  to  sub-divide,  is  to  be  carefully 
traced  and  measured  before  you  enter  upon  the  sub-division  thereof.  This  will  °nable 
you  to  observe  any  change  that  may  have  taken  place  in  the  magnetic  variation,  as 
it  existed  at  the  time  of  running  the  township  lines,  and  will  also  enable  you  to  com- 
pare your  chaining  with  that  upon  the  township  lines, 

2.  Any  discrepancy,  arising  either  from  a  change  in  the  magnetic  variation  or  a 
difference  in  measurement,  is  to  be  carefully  noted  in  the  field-notes. 

3.  After  adjusting  your  compass  to  a  variation  which  you  have  thus  found,  will 
retrace  the  eastern  boundary  of  the  township,  you  will  commence  at  the  corner  to 
sections  35  and  36,  on  the  south  boundary,  and  run  a  line  due  north  forty  chains,  to 
the  quarter-section  corner,  which  you  are  to  establish  between  sections  35  and  36; 
continuing  due  north,  forty  chains  further,  you  will  establish  the  corner  to  sections 
25,  26,  35,  and  36. 

4.  From  the  section  corner  last  named,  run  a  random  line,  without  blazing,  due 
east,  for  corner  of  section  25  and  36  in  east  boundry,  and  at  forty  chains  from  the 
starting  point,  set  a  post  for  temporary  quarter-section  comer.  If  you  intersect 
exactly  at  the  corner,  you  will  blaze  your  random  line  back,  and  establish  it  as  the 
true  line;  but  if  your  random  line  intersects  the  said  east  boundary  either  north  or 
south  of  said  corner,  you  will  measure  the  distance  of  such  intersection,  from  which 
you  will  calculate  a  course  that  will  run  a  true  line  back  to  the  corner  from  which 
your  random  started.  You  will  establish  the  permanent  quarter-section  corner  at  a 
point  equi-distant  from  the  two  terminations  of  the  trtie  line. 

5.  From  the  corner  of  sections  25,  26,  35,  36,  run  due  north  between  sections  25 
and  26,  setting  the  quarter-section  post  as  before,  at  forty  chains,  and  at  eighty  chains 
establishing  the  corner  of  sections  23,  24,  25,  26.  Then  run  a  random  due  east  for 
the  comer  of  sections  24  and  25  in  east  boundan*';  setting  temporary  quarter-section 
post  at  forty  chains;  correcting  back,  and  establishing /^r;«a//*;//  quarter-section 
comer  at  the  equi-distant  point  on  the  true  line,  in  the  manner  directed  on  the  line 
between  sections  25  and  36. 

6.  In  this  manner  you  will  proceed  with  the  survey  of  each  successive  section 
in  the  first  tier,  until  you  arrive  at  the  north  boundary  of  the  township,  which  you 
will  reach  in  running  up  a  random  line  between  sections  1  and  2.  If  this  random 
line  should  not  intersect  at  the  comer  established  for  sections  1,  2,  35  and  36,  upon 
the  township  line,  you  will  note  the  distance  that  you  fall  east  or  west  of  the  same, 
from  which  distance  you  will  calculate  a  course  that  will  run  a  true  line  south  to  the 
corner  from  which  your  random  started.  Where  the  closing  corner  is  on  the  base  or 
standard  line,  a  deviation  from  the  general  rule  is  explained  under  the  head  of  Dia- 
gram "  B." 

7.  The  first  tier  of  sections  being  thus  laid  and  surveyed,  you  will  return  to  the 
south  boundary  of  the  township,  and  from  the  corner  of  sections  34  and  35,  com- 
mence and  survey  the  second  tier  of  sections  in  the  sarhe  manner  that  you  pursued 
in  the  survey  of  the  first,  closing  at  the  section  corners  on  the  first  tier. 

8.  In  like  manner  proceed  with  the  survev  of  each  successive  tier  of  sections,  until 
you  arrive  at  the  fifth  tier;  and  from  each  section  corner  which  you  establish  upon 
this  tier,  you  are  to  run  random  lines  to  the  corresponding  corners  established  upon 
the  range  line  forming  the  western  boundry  of  the  township;  setting,  as  you  proceed, 


RULES    AKD    INSTRUCTIONS.  299 

each  temporary  quarter-section  post  at  forty  chains  from  the  interior  section  corner, 
so  as  to  throw  the  excess  or  deficiency  of  measurement  on  the  extreme  tier  of 
quarter-sections  contiguous  to  the  township  boundary;  and,  on  returning,  establish 
the  true  line,  and  establish  thereon  the /^r»«a«f«^  quarter-section  corner. 

Quarter-section  corners,  both  upon  north  and  south  and  upon  east  and  west  lines, 
are  to  be  established  at  a  point  equi-distant  from  the  corresponding  section  comers 
except  upon  the  lines  closing  on  the  north  and  west  boundaries  of  the  township,  and 
in  those  situations  the  quarter-section  corners  will  always  be  established  at  precisely 
forty  chains  to  the  north  or  west  (as  the  case  may  be)  of  the  respective  section  corners 
from  which  those  lines  respectively  start,  by  which  procedure  the  excess  or  deficiency 
in  the  measurements  will  be  thrown,  according  to  law,  on  the  extreme  tier  of  quarter- 
sections. 

Every  north  and  south  section  line,  except  those  terminating  in  the  north  boundary 
of  the  township,  is  to  be  eighty  chains  in  length. 

The  east  and  west  section  lines,  except  those  terminating  on  the  west  boundary  of 
the  township,  are  to  be  within  one  hundred  links  of  eighty  chains  in  length;  and  the 
north  and  south  boundaries  of  any  one  section,  except  in  the  extreme  western  tier, 
are  to  be  within  one  hundred  links  of  equal  length.  The  meanders  within  each 
fractional  section,  or  between  any  two  meander  posts,  or  of  a  pond  or  island  in  the 
interior  of  a  section,  must  close  within  one  chain  and  fifty  links. 

Diagram  "  A"  illustrates  the  mode  of  laying  off  township  exteriors  north  of  the 
base  line  and  east  and  -west  of  the  principal  meridian,  whether  between  the  base  and 
first  standard,  or  between  any  two  standards;  and  the  same  general  principles  will 
equally  apply  to  townships  south  of  the  base  fine  and  east  and  west  of  the  meridian, 
and  between  any  two  standards  south,  where  the  distances  between  the  base  and  first 
standard,  and  between  the  standards  themselves,  are  five  townships  or  thirty 
miles. 

Diagram  "  B  "  indicates  the  mode  of  laying  off  a  township  into  sections  and 
quarter-sections,  and  the  accompanying  set  of  field-notes  (marked  B,)  critically 
illustrate  the  mode  and  order  of  conducting  the  survey  under  every  variety  of 
circumstances  shown  by  the  topography  on  the  diagram.  In  townships  lying  south 
of  and  contiguous  to  the  base  or  to  any  standard  parallel,  the  lines  between  the 
northern  tier  of  sections  will  be  run  north,  and  be  made  to  close  as  true  lines;  quarter- 
section  comers  will  be  set  at  forty  chains,  and  section  corners  established  at  the 
intersection  of  such  section  lines  with  the  base  or  standard,  (as  the  case  may  be,)  and 
the  distance  is  to  be  measured  and  entered  in  the  field-book  to  the  nearest  corner  on 
such  standard  or  base. 

The  mode  and  order  of  surveying  the  ^;tr/^rwr  boundaries  of  a  township  are  illus- 
trated by  the  specimen  field-notes  marked  A;  and  the  mode  and  order  of  j«i}-(//z'i- 
ding  a  township  into  sections  and  quarter-sections  are  illustrated  by  the  specimen 
field-notes  marked  B.  The  attention  of  the  deputy  is  particularly  directed  to  these 
specimens,  as  indicating  not  only  the  method  in  which  his  work  is  to  be  conducted, 
but  also  the  order,  manner,  language,  etc.,  in  which  his  field-notes  are  required  to  be 
returned  to  the  Surveyor-General's  office  ;  and  such  specimen  are  to  be  deemed  part 
of  these  instructions,  and  any  departure  from  their  details,  without  special  authority, 
in  cases  where  the  circumstances  are  analagous  in  practice,  will  be  regarded  as  a  vio- 
lation of  his  contract  and  oath. 


300 


THE    SURVEYOR. 


2Sro.  133. 

FORM  OP  FIELD  NOTES  OF  TOWNSHIP  LINES. 

[A.] 

FIELD-NOTES  OF  TOWNSHIP  LINES. 

Township  89  north  between  Ranges  29  and  30   XV, 

North  between  sections  13  and  18. 

Variation  10° 

Chains, 

8.00.  Pond  E.  and  west, 

15.00.  Leave  same. 

40.00.  Set  post  for  qr.  section  corner  in  mound,  pit  8  links  East. 

48.00.  Enter  timber  NW  and  SE. 

54.00.  Brook  4  L.  wide,  NE. 

59.50.  Same,  runs  N.  W. 

68.00.  Enter  bottom  SE. 

70.00.  Lizzard  Fork,  Des  Moines,  60  L.  wide,  runs  S.  E. 

71.00.  Leave  timber  SE. 

80.00.  Set  post  for  corner  to  sections  7,  12, 13  and  18  in  mound,  pit  8  links  South, 
last  half  partly  broken,  1st. 


North  between  sections  7  and  12. 

Variation  10°  15'. 

18.00.     Leave  bottom  SE. 

40.00.     Set  post  for  qr.  section  corner  in  mound,  pit  8  links  East. 
80.00.     Set  post  for  comer  to  sections  1,  6,  7,  and  12  in  mound,  pit  8  links  south. 
Surface  rolling.     Soil  first  rate, 


Chains. 
40.00. 
63.00, 
76.00. 


Township  89  north,  between  Ranges  29  and  30. 

North  between  sections  1  and  6. 

Variation  10°  20' 

Set  post  for  qr.  section  corner  in  mound,  pit  8  links  East. 

Pond  and  marsh  S.  W. 

Over  marsh,  W.    for  C,  and  set  post  for  comer  to  townships  89  and  90. 

North,  of  ranges  29    and  30  W.,  in  mound,  pits  10  L,  north  and  south 
Surface  level:  soil  wet,  2d  rate. 
September  3d,  1853. 

Measuring  chain  compared  with  standard  and  found  correct. 
(This   township  corner  is   100   links   east   of  the  true  corner,  which  is  in 

marsh.) 


Chains. 
40.00. 
80.00. 


Between  Townships  89  and  90  A^.,  Ra7ige  29  W.  5th  Meridian. 

West  between  sections  4  and  33. 

Variation  9°  35'. 

Set  post  for  qr.  sec.  cor.  in  mound,  pit  8  links  East. 

Set  post  for  corner  to  sections  4,  5,  32  and  33  in  mound,  pit  8  links  South, 

Surface  mostly  level ;  soil  first-rate. 


RULES   AND   INSTRUCTIONS. 


301 


Chains. 
40.00. 
80.00. 


Between  Townships  89  and  90  ^V.  Range  29   W.  hth  Meridian. 

West  between  sections  5  and  32. 

Variation  9°  50'. 

Set  post  for  qr.  section  corner  in  mound,  pit  8  links  East. 

Set  post  for  corner  to  sections  5,  6,  31  and  32  in  mound,  pit  8  links  South. 

Surface  level ;  soil  first  rate. 


West  between  sections  6  andZ\, 
Variation  10°. 


Chains. 
35.00. 
37.50. 
40.00. 
79.50. 


Pond  and  marsh  N.  and  S. 

Leave  same  W.  for  C. 

Set  post  for  qr.  sec.  cor.  in  mound,  pit  8  links  East. 

Pond  and  marsh  lies  .S.  W.,  and  set  post  in  mound,  pits  10  links  N.  and 

S.,  for  witness  corner  to  townships  89    and  9U  N.,  ranges  29  and  30  W. 
80.50.     Intersected  range  line  4  chains  South  of  post  and  made  witness  corner  100 

links  East  of  true  corner. 
Surface  level ;  soil  2d  rate. 


Township  lines  surveyed  by 


JOWN  W.  ELLIS, 

U.  S.  Deputy  Surveyor, 


No.  134. 

FORM  OF  FIELD-NOTES  OF  SUB-DIVISION  OF  TOWNSHIP. 


[B.1 


Sub-Division 

of 

Township  No.  89,  North 

of 

Range  30,  West  of  5th  Principal  Meridian, 

Iowa. 

Commenced  June  28th,  1854. 

Finished  July  7th,  1854. 

By  George  Berry,  Deputy  Surveyor. 


Measuring  chain  compared  with  standard  chain  and  found  to  be  one  inch  loo 
long  and  adjusted  thereto. 

To  determine  the  course  of  the  east  boundf.ry  of  the  township  I  commence  (with 
my  compass  adjusted  at  a  variation  of  9°  30'  east)  at  the  corner  of  townships  88  and 
89,  ranges  29  and  30,  and  run  thence  north  on  a  blank  line;  at  39.56  chains,  fell  30 
links  east  of  quarter-section  post;  79.10  chains  fell  54  links  c;ist  of  corner  to  sections 
25  and  36,  township  89  North,  range  30  West. 

From  corner  to  townships  88  and  89,  ranges  29  and  30,  with  compass  adjusted  at  a 
variation  of  9°  If  East,  I  run  west  on  a  blank  line  along  south  boundary  of  section 
36,  township  89  North,  range  30  West,  at  39.57  chams  fell  13  links  north  of  quarter- 
section  corner;  at  79.10  chains  fell  30  links  north  of  corner  to  sections  35  and  36. 


Nor tk  between  sections  35  and  36. 

Variation  9°  50'  East. 
Chains. 

11.00.     Leave  marsh,  bears  N.  E.  and  West;  unfit  for  cultivation. 

40.00.    Set  quarter-section  post  in  a  mound  of  earth  and  sod-pit  8  links  East. 


302 


THE   SUKVEYOR. 


40-50.     Enter  pond  of  water  2  feet  deep,  bears  N.  E.  and  S.  W. 
63.00.     Leave  same;  bears  N.  E.  and  S.  W. 

80.00.     Set  post  corner  to  sections  25,  2C,  35  and  36,  in  mound  of  earth  and  sod;, 
pit  8  links  south. 
Surface  undulating;  soil,  2d-rate. 


East  random  between  sections  25  and  36. 
Variation  9°  25'  East. 
80.20.     Intersect  range  line  80  links  south  of  post. 


West  corrected  between  sections  25  and  36. 

Variation  9°  59'  East. 

6.60.     Enter  marsh;  bears  N.  W.  and  S.  E. 
19.60.     Leave  wet  marsh;  bears  N.  W.  and  S.  E.;  unfit  for  cultivation. 
40.10.     Set  section  post  in  mound,  pit  Slinks  East. 
80.20.     Section  corner. 

Surface  level,  or  rather  flat;  soil  2d-rate,  with  a  fair  proportion  of  sand. 


North,  between  sections  25  and  26. 

Variation  10°  East. 

40.00.    Set  quarter-section  post  in  a  mound  of  earth  and  sod;  pit  8  links  East. 
80.00.     Set  post,  corner  to  sections  23, 24,  25,  and  26,  in  mound  of  earth  and  sod;  pit 
8  links  South,  and  enter  bottom,  bears  S.  E.  and  N.  W. 
Surface,  undulating;  soil,  good  second-rate. 
June  28th,  1854. 
Measuring  chain  compared  with  standard  chain  and  found  correct. 


Toionship  89  N.,  R.  28  W.,  bth  Meridian. 

Meander  of  Des  Moin-es  river,  up  the  right  bank  in  Section  7,  from  meander  comer 
between  Sections  7  and  18. 

Variation  10°  EcLSt. 


Courses. 

N. 

3i° 

E. 

11.08  chains. 

North 

14.00  chains. 

N. 

26  ■=• 

E. 

17.50  chains. 

N. 

12  ° 

W. 

7.25  chains. 

N. 

34i° 

W. 

5.00  chains. 

N. 

45  ° 

W. 

6.77  chains. 

N. 

77  ° 

w. 

6.00  chains. 

S. 

74  ° 

w. 

8.75  chains. 

S. 

44  ° 

w. 

6.50  chains.     Coal  here. 

S. 

63i° 

w. 

7.50  chains. 

S. 

76  ° 

w. 

6.50  chains. 

s. 

84  ° 

w. 

6.50  chains. 

N. 

74  ° 

w. 

5.00  chains. 

N. 

66  ° 

w. 

12.00  chains. 

s. 

88  ° 

w. 

3.44  chains,  to  meander  corner  on  west  boundary  between  sections 

7  and  12. 

Banks  about  8  feet,  except  at  coal  bank — there  25  or  30  feet. 

>v_^ 


»/.(■!'■'"! 


To\msMp5"89]N.RaiigeN°29w.5&Mer. 


EULES   AND   INSTETJCTIONS.  303 

Township  89,  R.  28  W.,  btk  Meridian. 

Meander  of  island  in  section  19,  in  Des  Moines  river.  Set  post  on  right  baT)Ic  of 
island,  course  from  meander  post  on  rigiit  bank  of  river,  between  sections  18  and  19 
— N.  43°  E.  3.46  chains. 

Bearing  to  said  post,  cluster  white  maple — one  marked  20  inches — N.  67^  E.  18 
links. 

Courses.  Chains. 


N.  46i°  W. 

7.25. 

N,  25i°  W. 

2.50. 

N.  14  °  E. 

15.00. 

To  head  of  island. 

S.    34  °  E. 

10.00. 

S.    11  °  E. 

4  00. 

S.      7i°  W. 

•4.50. 

S.      9  °  E. 

1.25. 

S.    40*°  W. 

1.68. 

S.    29  °  W. 

350. 

N.  60  °  W. 

.70, 

to  place  of  beginninj 

Timber:     ms 

iple,  ha 

ckberry,  and  elm;  so 

The  sub-divisions  of  fractional  sections  into  forty  acre  lots,  (as  near  as  may  be), 
are  to  be  so  laid  down  on  the  official  township  plat  in  red  Wnes,  as  to  admit  of  giving 
to  each  a  specific  designation,  if  possible,  according  to  its  relative  position  in  the 
fractional  section,  as  per  examples  afforded  by  Diagram  B,  as  well  as  by  a  number,  in 
all  cases  where  the  lot  cannot  properly  be  designated  as  a  quarter-quarter.  Those 
fractional  sub-division  lots  which  are  not  susceptible  of  being  described  according  to 
relative  local  position,  are  to  be  numbered  in  regular  series:  No.  1  being  (wherever 
practicable,  and  as  a  general  rule)  either  the  northeastern  or  the  most  easterly  frac- 
tional lot,  and  proceeding  from  east  to  west,  and  from  west  to  east,  alternately,  to  the 
end  of  the  series ;  but  such  general  rule  is  departed  from  under  circumstances  given. 
«»»««*  K-  «  * 

Sub-division  of  sections. — The  following  are  the  rules  and 
instructions  relating  to  the  sub-divisions  of  sections: 

DEPARTMENT  OF  THE  INTERIOR,      \ 
General  L.a.nd  Office,  May  12,  1870. ) 

C.  C.  Carpenter,  Esq.,  Register  S.  L.   O.,  Des  Moines,  Iowa. 

Sir  : — In  reference  to  the  subject  of  your  letter  of  the  22d  ultimo,  I  have  to  state 
that  the  following  directions  for  the  sub-division  of  sections  of  the  public  land  are  in 
strict  accordance  with  the  acts  of  Congress  relating  to  the  public  surveys,  now  in 
force : 

1st.  The  original  comers,  when  they  can  be  identified,  must  stand  as  the  true 
corners. 

2d.  Under  the  provisions  of  the  act  of  February  11,  1805,  the  course  to  be  pur- 
sued in  the  sub-division  of  sections  is  to  run  straight  lines  from  the  established  quarter- 
section  corners — United  States  surveys — to  the  opposite  corresponding  corners,  and 
the  point  of  intersection  of  these  lines  will  be  the  corner  common  to  the  several  quar- 
ter-sections. 

3d.  In  the  sub-division  of  fractional  sections  where  no  opposite  corresponding 
comers  have  been  or  can  be  fixed,  the  sub-division  lines  should  be  ascertained  by 
running  from  the  established  corners,  due  north,  south,  east  or  west  lines,  as  the  case 


304 


THE   SURVEYOR. 


may  be,  to  the  water-course,  Indian  boundary  line  or  other  external   boundary  of 
such  fractional  section. 

4th.  Upon  the  lines  closing  on  the  north  and  west  boundaries  of  a  township,  the 
quarter-posts  are  established  by  the  United  States  Deputy  Surveyors  at  precisely 
forty  chains  to  the  north  or  west,  as  the  case  may  be,  of  the  last  interior  section 
corner  and  the  excess  or  deficiency  in  the  measurement  is  thrown  on  tlic  outer  tier  of 
lots,  as  per  act  of  May  10,  1800. 

5th.  In  the  sub-division  of  quarter-sections,  the  quarter-quarter  corners  are  to  be 
established  at  points  cqui-distant  between  the  section  and  quarter-section  corners 
except  on  the  last  half  mile  of  the  lines  closing  on  the  north  and  west  boundaries  of 
a  township,  where  they  are  to  be  placed  at  a  distance  of  twenty  chains— original 
measurement — to  the  north  or  west  of  the  quarter-section  corners. 

6.  The  sub-division  lines  of  fractional  quarter-sections  should  be  run  from 
points  on  the  section  lines  intermediate  between  the  section  and  quarter-section  cor- 
ners due  north,  south,  east  or  west  to  the  lake,  water-course  or  reservation  which 
renders  such  tracts  fractional. 

In  regard  to  the  restoration  of  lines  of  the  public  surveys,  where  the  same  may  be 
obliterated  by  time  or  Hccident,  the  same  can  only  be  legally  effected  when  done  in 
strict  accordance  with  the  laws  of  the  United  States  relating  to  the  subject. 
Very  resijectfully,  your  obedient  servant, 

JOS.  S.  WILSON,   Commissioner. 

Restoration  of  lost  corners. — The  following  are  the  rules 
for  the  restoration  of  lost  corners: 

GENERAL  LAND  OFFICE,      \ 
June  29th,   1863.) 

D.  W.   Maxon,  Esq.,  Cedar  Creek,  Washivgton    Co.,   Wis. 

Sir  : — Your  letter  of  the  12th  inst.,  asking  for  information  as  to  the  proper  mode 
of  establishing  lost  corners  of  the  public  surveys,  etc.,  is  received.  As  stated  in  my 
communication  of  the  2d  inst.,  this  office  does  not  assume  to  exercise  any  control 
over  the  surveying  operations  of  county  surveyors. 

For  information  of  surveyors  who  may  be  called  upon  to  re-establish  lost  corners 
of  the  public  surveys,  or  sub-divide  sections,  the  following  general  principles,  based 
upon  the  laws  of  Congress,  and  the  regulations  of  the  land  department  in  accordance 
therewith,  may  be  stated: 

1st.  Section  and  quarter-section  corners  as  established  by  the  government  survey 
must,  by  law  of  Congress,  stand  as  the  true  corners. 

2d.  Missing  corners  must  be  re-established  at  the  indcntical  point  where  the 
original  posts  were  planted  by  the  United  States  deputy  surveyors. 

3d.  The  legal  presumption  is,  in  the  absence  of  any  evidence  to  the  contrary, 
that  lost  section  and  quarter-section  posts  were  originally  established  at  the  distance 
indicated  in  the  field-notes. 

4th.  Half-quarter-section  comers  must  be  established  eqtii-distant  from  the  section 
and  quarter-section  posts. 

The  first  proposition  above  is  in  accordance  with  a  law  of  Congress,  approved,  ' 
Feb.  11th,  1805.  To  divide  a  section  into  quarters  a  right  line  should  be  run  from 
the  quarter-section  post  in  one  section  line  to4he  corresponding  quarter-section  post 
in  the  opposite  section  line,  even  though  one  or  more  of  these  posts  may  have  been 
established  nearer  to  one  section  corner  than  the  other,  thereby  giving  to  one  quar- 
ter-section more  than  160  acres,  and  to  another  less. 


RULES   AND    INSTRUCTIONS.  305 

The  second  proposition  grows  out  of  the  first,  and  is  in  accordance  with  the  laws 
of  Congress.  It  is  the  duty  of  the  surveyor  to  re-establish  missing  posts  in  the  exact 
locality  where  they  were  originally  placed  in  the  government  survey,  The  proof  or 
locality  first  sought  to  be  obtained  should  be  the  "  witness  trees,"  or  any  other  means 
of  identification  contained  in  the  Jield-noie^,  and  next,  clear  and  unquestionable  tes- 
timony of  any  other  kind. 

If  no  bearing  trees,  or  other  evidences  in  the  field-notes  or  elsewhere  exist  by  which 
the  locality  of  the  missing  posts  can  be  identified  or  determined  in  the  field,  then,  as 
stated  under  the  third  head,  the  legal  presumption  is,  that  the  missing  section  or 
quarter  section  corners  were  originally  established  in  conformity  with  the  distances 
expressed  in  the  field-notes,  and  the  surveyor  should  so  re-establish  them. 

Extinct  quarter-section  corners,  except  on  fractional  section  lines,  when  they  can- 
not be  identified  as  above,  should  be  re-established  equi-distant  between  the  section 
corners,  in  a  right  line  between  the  the  nearest  noted  "  line  trees  "  each  side  of  it,  if 
there  are  any,  but  if  none  are  found,  then  in  a  right  line  between  the  section  corners. 
Extinct  quarter-section  posts  on  section  lines  which  close  on  the  north  and  west 
boundaries  of  townships  should  be  re-established,  according  to  the  original  measure- 
ment thereof  at  forty  chains  from  the  last  interior  section  corner. 

Extinct  section  corners  may  be  re-established  by  running  a  right  line  between  the 
nearest  noted  "line  trees"  north  and  south  and  east  and  west  of  the  lost  corner,  if 
there  be  any  such  trees  within  the  distance  of  the  nearest  quarter-section,  or  section 
corners;  but  if  no  line  trees  be  found,  then  between  the  nearest  quarter-section  cor- 
ners, and  at  the  point  of  intersection  of  the  two  Hues  thus  run,  establish  the  section 
corner,  with  new  bearings,  to  the  nearest  and  most  desirable  objects. 

The  quarter-mile  posts  are  not  established  in  government  surveys,  but  are,  by  law, 
understood  to  be  equi-distant  from  the  section  and  quarter-section  corners,  as  stated 
under  the  fourth  head,  and  should  be  so  established  by  the  county  surveyor.  It  may 
be  remarked,  that  where  the  measurement  of  any  section  line  by  the  county 
surveyor  does  not  correspond  with  the  original  measurement  recorded  in  the  field- 
notes,  lost  corners  should  be  re-established  at  proportional  distances  from  each  other, 
between  the  known  corners. 

A  proper  application  of  the  principles  embraced  herein  will  enable  the  practical 
surveyor  to  sub-divide  the  public  lands  and  re-establish  the  lost  corners  of  the 
public  surveys,  in  conformity  with  law  and  the  regulations  and  usages  of  the  land 
department. 

There  are  some  anomalous  cases,  such,  for  instance,  as  double  comers  on  the 
north  and  west  boundary  lines  of  townships,  an  explanation  of  which  must  be  omit- 
ted, owing  to  the  length  of  this  communication.  The  general  principles  which  should 
govern  the  county  surveyor  are,  however,  indicated  with  sufficient  clearness  to  guide 
him  in  the  rightful  performance  of  his  duties. 

Very  respectfully,  etc., 

J.^S.  M.  EDMUNDS,   Commissioner. 

Sub-division:  lost  corners,  otc. — The  followinc:  ohseiva- 

tions  of  Hon.  C.  C.  Carpenter  are  taken  from  his  valuable  compi- 
lation of  "  Laws,  Rules  and  Instructions  relating  to  the  duties  of 

20 


306  THE   SURVEYOK. 

County  Survej'ors,"  to  which   the   surveyor  is   referred  for  more 
full  instructions  relating  to  this  matter: 

The  sub-division  of,  or  restoration  of  lost  corners  to  fractional  sections,  also 
the  manner  of  proceeding  to  establish  quarter-cotters  on  township  and  range  lines, 
on  which  are  double  sets  of  section  corners. 

Prior  to  1846  the  instructions  of  the  Commissioner  of  the  General  Land-Office 
differed  from  those  subsequent  to  that  date,  in  reference  to  closing  upon  the  north 
and  west  boundaries  of  a  township.  The  instructions  then  provided  that,  in  closing 
upon  the  north  line  of  a  township,  the  line  should  be  run  from  the  last  interior  section 
corner  south  of  that  line;  at  forty  chains  a  quarter  post  should  be  set,  and  on  inter- 
secting the  north  boundary  line,  a  section  corner  was  established  at  the  point  of 
intersection,  the  surveyor  noting  in  the  field-notes  the  distance  it  fell  either  east  or 
west,  or  north  or  south  of  the  section  corner  for  the  two  adjacent  sections,  north  or 
west  of  the  corner  established  when  the  township  line  was  run.  This  course  is  still 
pursued  when  closing  upon  a  correction  line.  But  in  the  case  of  ordinary  township 
and  range  lines,  the  instructions  and  practice  are  now,  and  have  been  since  1846,  to 
close  upon  the  north  and  west  boundaries  by  running  randoms  and  correcting  back, 
the  same  as  in  making  closings  east  upon  interior  section  corners.  This  difference, 
however,  will  be  observed:  upon  interior  section  lines  running  east  and  west  the 
quarter-section  posts  were  set  equi-distant  between  the  two  section  corners,  while  in 
closing  out  upon  the  north  and  west  boundaries,  the  quarter-section  corner  was 
established  just  forty  chains  from  the  last  interior  corner  south  or  east,  thus  throwing 
the  fraction  entirely  upon  the  most  northerly  and  westerly  half-sections. 

It  will  be  seen,  therefore,  that  upon  many  township  and  range  lines,  as  upon  all 
correction  lines,  there  are  double  sets  of  corners.  It  will  also  be  seen  by  the 
instructions  published  herein,  that  deputy  surveyors  were  instructed  not  to  run  the 
boundary  lines  upon  which  these  closings  were  made,  as  they  would  not  be  paid 
therefor. 

It,  therefore,  devolves  upon  the  county  surveyor,  engaged  to  sub-divide  a  section 
next  south  or  east  of  a  township  or  range  line,  upon  which  are  two  sets  of  corners,  to 
establish  the  quarter-section  corner  on  the  north  or  west  boundary  of  the  section. 
And,  in  doing  so,  he  will  find  the  following  letter  of  instruction  and  the  accompany- 
ing Diagram  B  will  be  of  value  to  him: 

DEPARTMENT  OF  THE  INTERIOR, 
General  Land  Office, 
May  26th,  1870. 

C.  C.  Carpenter,  Esq.,  Register  of  the  State  Land  Office,  Des  Moines,  Iowa: 

Sir  : — I  am  in  receipt  of  your  letter  of  the  18th  instant,  desiring  information  in 
regard  to  the  proper  method  of  establishing  the  quarter-corners  on  the  northern 
boundaries  of  the  northern  tier  of  sections  in  a  township  where  there  is  a  double  set 
of  section  corners  on  the  township  line. 

In  reply,  I  have  to  say  that  the  quarter-corners  should  be  established  at  points 
equi-distant  between  the  northeast  and  northwest   corners  of  the  sections,  except  in 
section  six,   where   the   quarter-corner  should   be  placed  at  precisely  forty  chains 
(original  measurement)  west  of  the  northeast  corner  of  the  section. 
Very  respectfully, 

Your  obedient  servant, 

JOS.  S.   WILSON,   Commissioner. 


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DECISIONS   ILLUSTRATING    RULES.  307 

V.      DECISIONS     ILLUSTRATING     THE     FOREGOING 

RULES. 

In  establishing  a  lost  survey,  courses  and  distances  must  yield 
to  fixed  monuments.  All  ascertained  surrounding  monuments 
must  be  allowed  their  due  weight  in  determining  the  locality  of 
the  unascertained,  under  the  system  by  which  the  survey  was 
originally  made. 

Where  on  a  line  of  the  same  survey  between  remote  corners, 
the  whole  length  of  which  line  is  found  to  be  variant  from  the 
length  called  for,  in  re-establishing  lost  intermediate  monuments 
as  marking  sub-divisional  tracts,  we  are  not  permitted  to  presume 
merely  that  the  variance  arose  from  the  defective  survey  of  any 
part,  but  must  conclude,  in  the  absence  of  circumstances  showing 
the  contrary,  that  it  arose  from  the  imperfect  measurement  of 
the  whole  line,  and  distribute  such  variance  between  the  several 
sub-divisions  of  such  line  in  proportion  to  their  respective  lengths. 
Unknown  corners  must  be  found  by  corroborative  testimony  of 
all  known  corners,  with  as  little  departure  as  may  be  from  the 
system  adopted  on  the  original  survey  without  giving  preponde- 
rance to  the  testimony  of  any  one  monument  above  another. 
Moreland  v.  Page,  3  Iowa,  139. 

In  the  case  above  cited,  Moreland,  the  plaintifi",  claimed  he  was 
the  owner  of  the  east  half  of  the  south-west  quarter,  and  the  west 
half  of  the  south-east  quarter  of  section  four,  in  township  ninety, 
north  of  range  three  west,  and  of  right  entitled  to  the  possession 
of  the  same;  that  the  northern  boundary  of  said  lands,  is  a  line 
surveyed  by  .Joel  Bailey,  as  per  diagram  marked  "  (y,"  that  the 
defendant.  Page,  is  in  possession  of  so  much  of  said  lands  as  lie 
between  lines  marked  "  A.  B.,"  and  "  C.  D."  as  shown  by  said 
diagram;  and  that  the  defendant  claims  to  be  the  owner  of  the 
land  so  by  him  possessed,  and  claims  that  the  said  line  marked 
"  C.  I)."  on  said  diagram  "  C,"  is  the  proper  line  between  plain- 
tiff and  defendant.  The  defendant  denied  that  the  line  claimed 
by  the  plaintiff  is  the  true  boundary,  and  insists  that  the  line 
marked  "  C.  D."  on  said  diagram  "  C,"  is  the  true  line  of  bound- 
ary. The  Supreme  Court  held  that  the  instructions  of  the  Sur- 
veyor-General of   Wisconsin    was  to    be    the    rule,   and  that   in 


308  THE    SURVEYOR. 

accordance  therewith  the  line  "  between  plaintiff  and  defendant,  as 
ascertained  by  this  mode  of  survey,  falls  south  of  that  claimed  by 
plaintiff,  about  two  and  one-half  chains.  It  will  be  observed  by 
a  careful  examination  of  the  description  of  the  found  corners,  as 
hereinbefore  given,  that  the  quarter  section  corner  on  the  west 
line  of  section  nine,  and  the  section  corner  at  the  south-east  of 
said  section,  are  corners  found  and  identified  on  the  examination, 
and  the  same  were  recognized  on  the  re-survey." 

Field-notes  of  government  snrveyors. — In  construing  a 

patent  from  the  United  States  which  describes  the  land  granted 
by  the  number  of  the  section,  township  and  range,  courts  will 
look  to  the  plat  and  field-notes  made  and  returned  to  the  Sur- 
veyor General's  office  by  the  government  surveyors,  in  order  to 
locate  the  land.     11  111.  R.,  ( McClintock  v.  Rogers.) 

The  lines  actually  run  upon  the  ground,  by  the  original  sur- 
veyor, become  the  true  external  boundaries  of  all  the  lands  sold 
by  the  government,  if  they  can  be  ascertained  by  reference  to 
the  monuments  erected   upon   the   land   by  the  surveyor. 

The  monuments  erected  upon  the  land  are  facts.— 

The  field-notes  and  plat  returned  by  the  surveyor  indicating 
course,  distance,  and  quantity,  are  but  descriptions  which  serve 
to  assist  in  ascertaining  those  facts.  11  111.  R.,  (McClintock  v. 
Rogers.) 

What  established  monuments  show.— Established  mon- 
uments not  only  serve  to  show  with  certainty  the  boundary  of 
the  tract  upon  Avhich  they  are  erected,  but  may  be  resorted  to, 
in  connection  with  field-notes  and  other  evidence,  to  fix  the 
original  location  of  a  monument  or  line  which  has  become  lost 
or  obliterated  by  time,  accident,  or  design. 

The  law  cannot  satisfactorily  determine,  in  all  cases,  whether 
course  or  distance  shall  control,  when  they  do  not  correspond; 
this  must  be  determined  by  concurring  testimony,  and  the  cir- 
cumstances of  each  particular  case.  The  one  that  convinces  the 
judgment  most  must  be  selected.  The  monuments  erected  at  the 
two  extremities  of  a  township  line,  are  not  entitled  to  a  more 
controlling  influence,  in  determining  the  actual  location  of  the 


EE-StJEVET  OF   CITY   AND   TOWN   PLATS.  309 

intermediate  line,  than  the  section  corners  established  along  the 
line,  if  they  can  be  found. 

Where  a  township  line  is  lost,  the  monuments  of  the  adjacent 
sections  may  be  resorted  to  for  the  purpose  of  ascertaining  where 
the  lost  line  was  actually  run  by  the  original  surveyor.  A  town- 
ship line  is  not  necessarily  straight  in  all  cases;  a  deflected  line, 
if  established  by  satisfactory  evidence,  will  be  adopted  by  the 
court  as  the  true  line  originally  run  by  the  government  surveyor. 
Quantity,  although  the  least  reliable,  and  the  last  to  be  resorted 
to,  of  all  descriptions  in  a  grant  or  deed,  in  determining  the  boun- 
daries of  the  premises  conveyed,  may  sometimes  be  considered 
in  corroboration  of  other  evidence.  11  III.  K.,  (McClintock  v. 
Rogers.) 

Field-notes  and  plat. — The  directions  of  the  statute  relating 
to  mile-posts,  and  other  monuments,  and  the  making  of  field- 
notes  and  plats,  are  directory;  and  a  failure  to  comply  therewith 
by  the  surveyor,  will  not  render  the  proceedings  void.  24  Iowa, 
362;  9  Iowa,  583. 

VI.     RE-SURVEY  OF  CITY  AND  TOWN  PLATS. 

The  re-survey  of  city  and  town  plats  is  provided  for  in  Chapter 
54,  of  the  acts  of  the  15th  General  Assembly,  as  follows: 

Where  any  town  plat  is  lost,  same  may  be  re-surveyed. — Section  1.  Be 
it  enacted  by  the  General  Assembly  of  the  State  of  Iowa,  That  in  all  cases  where  the 
original  town-plat  of  any  city,  town,  or  village  of  this  state,  or  any  of  the  additions 
to  any  such  city,  town,  or  village,  shall  have  been  heretofore  or  may  hereafter  be  lost, 
mislaid,  or  destroyed  after  the  sale  and  conveyance  of  any  sub-division,  block,  or  lot 
thereof,  by  the  original  owner  or  proprietor,  to  any  person  or  persons,  before  the 
same  shall  have  been  recorded,  it  shall  be  lawful  for  any  three  persons  interested  in 
such  city,  town,  village,  or  addition  thereto,,  to  have  such  original  city,  town,  village, 
or  addition  to  any  such  city,  town,  or  village  re-surveyed  and  re-platted,  and  such 
plat  made  a  matter  of  record  as  hereinafter  set  forth:  Provided,  That  in  no  case 
shall  such  re  plat  be  made  a  matter  of  record  without  the  consent  in  writing,  indorsed 
thereon,  of  the  original  owner  or  proprietor  of  such  city,  town,  village,  or  addition 
thereto,  if  he  be  alive  and  his  residence  known  to  those  who  desire  such  re-plat 
recorded. 

Duty  of  county  surveyor. — Sec.  2.  The  county  surveyor  of  any  county  of  this 
state  in  which  is  situate  any  such  city,  town,  village,  or  addition  thereto  as  contem- 
plated in  section  one  of  this  act,  is  hereby  authorized,  empowered,  and  upon  pay- 
ment to  him  of  his  legal  fees  by  the  persons  interested,  required  to  re-survey  any  such 
city,  town,  village,  or  addition  thereto,  and  shall  make  out  a  \>\\\.  of  such  city,  town, 
village,  or  addition  so  re-surveyed,  which  plat  shall  in  all  respects,  as  near  as  possible, 


310  THE   SURVEYOR. 

conform  to  the  original  lines  of  said  city,  town,  village,  or  any  addition  thereto,  that 
may  be  re-surveyed,  and  it  shall  in  all  respects  be  made  out  as  required  by  section 
559  of  the  code.  And  in  order  to  the  perfect  completion  of  such  re-survey  and  plat, 
the  surveyor  is  empowered  and  authorized  to  subpoena  witnesses,  administer  oaths, 
and  to  take  evidence  touching  said  original  plat,  lines,  sub-divisions  of  said  city,  town, 
village,  or  addition  thereto  sought  to  be  sun-eyed  and  re-platted;  also  as  to  whether 
the  original  proprietor  be  dead  or  living,  and  touching  all  things  necessary  to  enable 
him  to  accurately  establis^h  the  lines  and  boundaries  of  the  said  city,  town,  village  or 
addition  thereto,  and  the  various  sub-divisions  thereof  :  Provided,  That  in  all  ciises, 
before  any  such  re-survey  shall  be  made,  the  county  surveyor  of  the  proper  county 
shall  give  four  weeks'  notice  in  some  newspaper  published  in  the  county,  if  there 
be  any,  of  such  contemplated  re-survey  and,  in  case  there  is  no  such  pap)er  published 
in  the  county,  then  by  posting  up  four  written  notices  in  four  of  the  most  public  places 
in  the  county,  one  of  which  shall  be  in  said  district  proposed  to  be  re- surveyed. 

Surveyor  to  certify  to  plat. — Sec.  3.  When  the  surveyor  shall  have  com- 
pleted said  plat,  as  hereinbefore  contemplated,  he  shall  attach  his  certificate  thereto, 
to  the  effect  that  said  plat  is  a  just,  true,  and  accurate  plat  of  said  city,  town,  village, 
or  addition  so  surveyed  by  him  ;  and  the  said  plat  and  certificate  thereto  shall  be  filed 
for  record  in  the  office  of  the  recorder  of  deeds  of  the  proper  county,  and  from  the 
date  of  such  filing  it  shall  be  regarded  and  treated,  in  all  courts  of  law  and  equity  in 
this  state,  as  though  the  same  had  been  made  by  the  original  owners  or  proprietors 
of  said  lands  so  re-surveyed  and  re-platted:  Provided,  That  any  person  or  persons 
deeming  themselves  aggrieved  by  said  re-platting  may  at  any  time,  within  six  months 
from  the  date  of  filing  said  plat  for  record,  con)mence  action  by  bill  in  chancery  in 
the  circuit  or  district  court  against  the  persons  employing  the  surveyor  as  aforesaid 
and  setting  up  their  causes  of  complaint,  and  asking  that  said  record  be  canceled. 

VII.     FEES  OF  THE  COUNTY  SURVEYOR. 
The  Code  provides  as  follows: 

Section  3800.  The  county  surveyor  is  entitled  to  charge  and  receive  the  follow- 
ing fees: 

For  each  day's  service  actually  performed  in  traveling  to  and  from  the  place  where 
any  survey  is  to  be  made,  and  for  making  the  same  and  return  thereof,  three  dollars; 

For  certified  copy  of  the  plat  or  field-notes,  twenty-five  cents. 

In  addition  to  which,  as  we  have  already  seen,  he  is  entitled  to 
four  dollars  a  day,  when  engaged  in  laying  out  and  changing 
highways. 


DUTY   OF   COKONER — ^ANTIQUITY   OP    OFFICE.  311 


CHAPTEE  :KXS.YL 


THE  CORONER. 

I.    ANTIQUITY  OF  THE  OFFICE,  AND  HIS  DUTY. 

The  oflBce  of  coroner  is  of  equal  antiquity  as  that  of  sheriflF, 
and,  like  the  sheriff,  his  powers  were  both  judicial  and  ministerial. 

His  principal  cluty. — His  principal  duty  now  consists  in 
inquiring,  when  any  person  is  killed  or  dies  suddenly,  concerning 
the  manner  and  cause  of  his  death.  His  ministerial  acts  are  only 
as  the  sheriff's  substitute. 

Provisions  of  the  CvOde. — The  Code  provides: 

May  act  as  SheriiF.— Sf.ctiom  349.  It  is  the  duty  of  the  coroner  to  perform  all 
the  duties  of  the  sheriff  when  there  is  no  sheriff,  and  in  cases  where  exception  is 
taken  to  the  sheriff,  as  provided  in  the  next  section. 

Serve  process. — Sec.  350.  In  all  proceedings  in  the  courts  of  record,  where  it 
appears  from  the  papers  that  the  sheriff  is  a  party  to  the  action;  or  where,  in  any 
action  commenced  or  about  to  be  commenced,  an  affidavit  is  filed  with  the  clerk  of 
the  court,  stating  that  the  sheriff  and  his  deputy  are  absent  from  the  county,  and  are 
not  expected  to  return  in  time  to  perform  the  service  needed;  or  stating  a  partiality, 
prejudice,  consanguinity,  or  interest,  on  the  part  of  the  sheriff,  the  clerk  or  court 
shall  direct  process  to  the  coroner,  whose  duty  it  shall  be  to  execute  it  in  the  same 
manner  as  if  he  were  sheriff. 

Sec.  351.  When  there  is  no  sheriff,  deputy  sheriff,  or  coroner,  qualified  to  serve 
legal  process,  the  clerk  of  the  court  may,  by  writing  under  his  hand  and  the  seal  of 
the  court  certifying  the  above  fact,  appoint  any  suitable  person  specially  in  each  case 
to  execute  such  process,  who  shall  be  sworn,  but  he  need  not  give  bond,  and  his 
return  shall  be  entitled  to  the  same  credit  as  the  sheriff's  when  the  appointment  is 
attached  thereto. 

Inquest. — Sec.  .'552.  The  coroner  shall  hold  an  inquest  upon  the  dead  bodies  of 
such  persons  only  as  are  supposed  to  have  died  by  unlawful  means.  When  he  has 
notice  of  the  dead  body  of  a  person  supposed  to  have  died  by  unlawful  means,  found 
or  being  in  his  county,  he  is  required  to  issue  a  warrant  to  a  constable  of  his  county, 
requiring  him  to  summon  forthwith  three  electors  of  the  county  to  appear  before  the 
coroner  at  a  time  and  place  named  in  the  warrant. 


312  THE    CORONER. 

"Warrant. — Sec.  353.     The  warrant  ma)'  be  in  substance  as  follows : 

State  of  Iowa,        ) 
....     County.  J 

To  any  constable  of  the  said  county  : — In  the  name  of  the  state  of  Iowa  you  are 
hereby  required  to  summon  forthwith  three  electors  of  your  county,  to  appear  before 
me  at  [name  the  place,]  at  [name  the  day  and  hour,  or  say  forthwith],  then  and  there 

to  hold  an   inquest  on  the  dead  body  of there  lying,  and  find  by  what 

means  he  died. 

Witness  my  hand  this    .    .    .    day  of    .    .    .  ,  A.  D.  18  .    . 

A  B,  Coroner  of   .    .    .    counlv. 

Service. — Sec.  354.  The  constable  shall  execute  the  warrant,  and  make  return 
tliereof  at  the  time  and  place  named. 

Jurors. — Sec.  355.  If  any  juror  fails  to  appear,  the  coroner  shall  cause  the 
proper  number  to  be  summoned  or  returned  from  the  bystanders,  immediately,  and 
proceed  to  empanel  them  and  administer  the  following  oath  in  substance: 

"  You  do  solemnly  swear  (or  affirm)  that  you  will  diligently  inquire,  and  true  pre- 
sentment make,  when,  how,  and  by  what  means  the  person  whose  body  lies  here  dead 
came  to  his  death,  according  to  your  knowledge  and  the  evidence  given." 

Subpcenas  :  contempt. — Sec.  356.  The  coroner  may  issue  subpcenas  within  his 
county  for  witnesses,  returnable  forthwith,  or  at  such  time  and  place  as  he  shall 
therein  direct,  and  witnesses  shall  be  allowed  the  same  fees  as  in  cases  before  a  jus- 
tice of  the  peace,  and  the  coroner  has  the  same  authority  to  enforce  the  attendance 
of  witnesses,  and  to  punish  them  and  jurors  for  contempt  in  disobeying  his  process 
as  a  justice  of  the  peace  has  when  his  process  issues  in  behalf  of  the  state. 

Oath. — Sec.  357.  An  oath  shall  be  administered  to  the  witnesses  in  substance  as 
follows : 

"You  do  solemnly  swear  that  the  testimony  which  you  shall  give  to  this  inquest, 
concerning  the  death  of  the  person  here  lying  dead,  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth." 

Testimony. — Sec.  358.  The  testimony  shall  be  reduced  to  writing  under  the 
coroner's  order,  and  subscribed  by  the  witnesses. 

Verdict. — Sec.  359.  The  jurors  having  inspected  the  body,  heard  the  testi- 
mony, and  made  all  needful  inquiries,  shall  return  to  the  coroner  their  inquisition  in 
writing,  under  their  hands  in  substance  as  follows,  and  stating  the  matters  in  the  fol- 
lowing form  suggested,  as  far  as  found  ; 

State  of  Iowa,         ) 
.    .    .    County.  ] 

An  inquisition  holden  at  .  .  .  ,  in  .  .  ,  county,  on  the  .  .  .  day  of  .  .  .  , 
A.  D.  18  .  ,  before  .  .  .  .  ,  coroner  of  the  said  county,  upon  the  body  of  .  . 
.  .  ,  (or  a  person  unknown)  there  lying  dead,  by  the  jurors  whose  names  are 
hereto  subscribed.  The  said  jurors  upon  their  oaths  do  say  [here  state  when,  how, 
by  what  person,  means,  weapon,  or  accident,  he  came  to  his  death,  and  whether 
feloniously.] 

In  testimony  whereof  the  said  jurors  have  hereunto  set  their  hands,  the  day  and 
year  aforesaid  : 

[which  shall  be  attested  by  the  coroner.] 

Kept  secret. — Sec.  360.  If  the  inquisition  find  that  a  crime  has  been  committed 
on  the  deceased,  and  name  the  person  whom  the  jury  believe  has  committed  it, 
the  inquest  shall  not  be  made  public  until  after  the  arrest  directed  in  the  next 
section. 


DUTY    OF    CORONER.  313 

Arrest. — Sec.  361.  If  the  person  charged  be  present,  the  coroner  may  order  his 
arrest  by  an  officer  or  any  other  person  present,  and  shall  then  make  a  warrant 
requiring  the  officer  or  other  person  to  take  him  before  a  justice  of  the  peace. 

Warrant. — Sec.  362.  If  the  person  charged  be  not  present,  and  tlie  coroner 
believes  he  can  be  taken,  the  coroner  may  issue  a  warrant  to  the  sheriff  and  consta- 
bles of  the  county,  requiring  them  to  arrest  the  person  and  take  him  before  a  justice 
of  the  peace. 

Same. — Sec.  363.  The  warrant  of  a  coroner  in  the  above  case  shall  be  of  equal 
authority  with  that  of  a  justice  of  the  peace,  and  when  the  person  charged  is  brought 
before  thejustice,  such  justice  shall  cause  an  information  to  be  filed  against  him,  and 
the  same  proceedings  shall  be  had  as  in  other  cases  under  information,  and  he  shall 
be  dealt  with  as  a  person  held  imder  an  information  in  the  usual  form. 

Form  of. — Sec.  304.  The  warrant  of  the  coroner  shall  recite  substantially  the 
transactions  before  him,  and  the  verdict  of  the  jury  of  inquest  leading  to  the  arrest, 
and  such  warrant  shall  be  a  sufficient  foundation  for  the  proceeding  of  the  justice 
instead  of  an  information. 

Inquest:  return. — Sec.  365.  The  coroner  shall  then  return  to  the  district  court, 
the  inquisition,  the  written  evidence,  and  a  list  of  the  witnesses  who  testified  material 
matter. 

Disposition  of  body. — Sec.  366.  The  coroner  shall  cause  the  body  of  a  deceased 
person  which  he  is  called  to  view,  to  be  delivered  to  his  friends  if  any  there  be,  but 
if  not,  he  shall  cause  him  to  be  decently  buried,  and  the  expense  to  be  paid  from  any 
property  found  with  the  body,  or,  if  there  be  none,  from  the  county  treasury,  certifying 
an  account  of  the  expenses,  which,  being  presented  to  the  board  of  supervisors,  shall  be 
allowed  by  them,  if  deemed  reasonable,  and  paid  as  other  claims  on  the  county. 

"When  no  coroner. — Sec.  367.  When  there  is  no  coroner,  and  in  case  of  his 
absence  or  inability  to  act,  any  justice  of  the  peace  of  the  same  county  is  authorized 
to  perform  the  duties  of  coroner  in  relation  to  dead  bodies,  and  in  such  case  he  may 
cause  the  person  charged  to  be  brought  before  himself  by  his  warrant,  and  may  pro- 
ceed with  him  as  a  justice  of  the  peace. 

Surgeons. — Sec.  368.  In  the  above  inquisition  by  a  coroner,  when  he  or  the 
jury  deem  it  requisite,  he  may  summon  one  or  more  physicians  or  surgeons  to  make 
a  scientific  examination,  and  shall  allow  in  such  case  a  reasonable  compensation 
instead  of  witness  fees. 

Prohibited  from  actin/a^  as  attorneys.— The  provisions 

of  the  Code  prohibit  coroners,  as  well  as  sherilFs  and  constables, 
from  appearing  in  court  as  attorney  for  any  party,  or  making  any 
writing,  or  process,  to  commence,  or  be  in  any  manner  used  in 
any  court,  or  from  becoming  a  purchaser,  either  directly  or 
indirectly,  of  any  property  by  them  exposed  for  sale.  Code, 
sections  342,  343, 

Election  and  (inalification.— The  election  of  the  coroner 
takes  plac-e  at  the  sam(!  time  of  the  sheriff,  in  each  odd-numbered 
year,  and  he  continues  in  office  for  the  same  term.  His  mode  of 
qualification  is  the  same  as  the   sherilV's,   and   reference   may  be 


314  THE   CORONER. 

had  to  the  directions  and  forms  given  in  considering  the  subject 
of  sheriffs,  for  a  guide  to  the  coroner  in  such  cases. 

Liability  when  acting  as  sheriff'.— When  the  coroner 

acts  in  the  place  of  a  sheriff,  as  a  ministerial  officer,  in  all 
cases,  his  duties  and  liabilities  are  the  same  as  the  sheriff's  in 
similar  cases,  and  reference  may  be  had  thereto  by  the  coroner, 
as  given  in  this  volume. 

Special  coroners,  when   appointed. — Where  the  sheriff 

is  interested,  his  deputy,  by  reason  of  his  relation  to  the  sheriff, 
is  equally  disqualified  to  act;  but  where  the  sheriff  is  sick,  absent 
from  the  county,  or  prevented  from  acting  temporarily,  the  deputy 
should  serve  process,  and  it  is  improper  to  direct  it  to  the  coro- 
ner; and  when  both  sheriff  and  coroner  are  disqualified,  absent, 
sick,  or  otherwise  prevented  from  acting,  the  clerk  should  appoint 
a  special  coroner,  and  the  writ  may  be  directed  to  said  special 
appointee,  or  if  the  writ  has  been  issued  before  the  disqualification 
is  known,  the  appointment  and  the  reason  for  it  may  be  indorsed 
on  the  back  of  the  writ,  or  annexed  to  it;  but  the  certificate  or 
appointment  need  not  contain  the  oath  of  the  appointee.  11 
Iowa,  91. 

Coroner  to  determine  when  to  act.  — The  supposi- 
tion of  death  by  unlawful  means,  of  course,  should  be  reasonable, 
and  should  amount  to  probable  cause  of  death  by  unlawful  means, 
of  which  the  coroner,  in  the  exercise  of  his  judgment,  after 
reasonable  investigation  and  inquiry,  must  determine.  It  is  not 
every  vague  rumor  or  supposition  of  such  a  death  by  other  parties 
that  would  impose  on  the  coroner  the  duty  of  an  investigation, 
but  it  would  be  his  duty  to  exercise  reasonable  diligence,  and 
determine  for  himself  his  duty  in  the  premises;  and  he  cannot 
hold  an  inquest  except  a  body  be  found. 

Summons,  oaths,  etc.— The  form  of  the  summons  for  the 
jurors  in  such  cases,  is  given  in  the  statute,  as  well  as  the  oath  to 
be  administered  to  them,  and  the  witnesses,  and  the  form  of  their 
inquisition  and  finding  in  the  matter. 

Warrant. — The  warrant  for  the  arrest  of  the  party  found  by 


FORMS   OF    FINDINGS   ON   INQUISITIONS.  315 

the  inquisition  to  be  the  person  who  has  committed  the  deed,  may 
be  in  the  following  form: 

WAREANT  or  COEONER. 
No.  125. 

State  of  Iowa,      ) 
County.  ^ 

The  State  of  Iowa,  To  any  sheriff  or  constable  of  said  county: 

Whereas,  the  undersigned,  coroner  of  said  county,  on  the 
....  day  of  . . . . ,  18 .... ,  caused  to  be  summoned  three  electors 
of  said  county  as  jurors  to  hold  an  inquest  over  the  dead  body  of 

,  deceased,  supposed  to  have  died  by  unlawful  means, 

and  WHEREAS,  said  jurors,  after  being  duly  sworn,  inspected  said 
body,  and  having  heard  the  testimony,  returned  to  me  their  inqui- 
sition in  writing  under  their  hands  on  the  ....  day  of  .  .  . . ,  18.  ., 
wherein  they  find  that  a  crime  has  been  committed  on  said 
deceased,  and  that  said  deceased  came  to  his  ( or  her)  death  by 
means  of  a  blow  on  the  head,  with  an  ax,  inflicted  by  one  .... 
.  .  . .,  (or,  state  any  other  means  of  death,  caused  by  the  party 
charged  as  found  by  the  jurors.) 

You    are    therefore   commanded    to    forthwith   arrest    the  said 

,  and   bring  him   before    ,  a   justice    of  the 

peace  of  said  county,  to  be  dealt  with  according  to  law. 

Witness  my  hand  at  .  . .  . ,  this   ....  day  of  . . . . ,  18 . . . 

C. .  . .  D. . . .,  coroner  of  said  county. 

II.     FORMS  OF  FINDINGS  ON  INQUISITIONS. 

The  following  forms  will  serve  to  guide  the  jurors  in  different 
cases,  in  stating  when,  how,  and  by  what  means,  weapon  or  acci- 
dent, the  deceased  came  to  his  death,  to  be  inserted  in  their 
inquisition. 

FINDING  IN  CASE  OF  MUEDEE. 
No.  126. 

That  on  the  ....  day  of  . . . . ,  18 . . ,  one  C . . . .  D . . . . ,  at  . . . . , 

in  said  county,  did  then  and  there,  with  a  certain  ax,  (or,  other 
instrument  known  or  unknown,)  which  he,  the  said  C.  . . .  D.  .  .  ., 
then  and  there  held  in  his  hands,  willfully  and  maliciously  inflict 
a  mortal  wound  on  the  head  of  the  said  E. . . .  F.  .  . . ,  of  which 
said  mortal  wound,  the  said  E....  F....  then  and  there 
instantly,  (or,  on  the  ....  day  of  . .  .  .,  18.  .,)  died;  and  so  the 
jurors  aforesaid  say  that  the  said  C...  D....  did,  as  they 
believe,  then  and  there  feloniously  kill  and  murder,  in  the 
manner  aforesaid,  the  said  E . . . .  F 


316  THE   CORONER. 

FINDING  IN  CASE  OF  SUICIDE. 
No.  127. 

That  the  said  C  D,  (or,  person  unknown),  did  on  the  ....  day 
of  ....,18..,  at  the  .  .  .  .,  in  said  county,  voluntarily  inflict  a 
mortal  wound  upon  the  body  of  him,  the  said  C  D,  (or,  person 
unknown,)  of  which  said  mortal  wound  the  said  C  D,  (or  person 
unknown),  instantly,  (or  on  the  ....  day  of   . .  .  .,  18.  .,)  died. 

And  so  the  jurors  aforesaid,  say  that  the  said  C  D,  (or  person 
unknown,)  did  then  and  there,  in  manner  aforesaid,  and  at  the 
place  aforesaid  vx)luntarily  kill  and  murder  himself. 

FINDING  IN  CASE   OF  DROWNING  BY  ACCIDENT. 
I^o.    128. 

That  on  the  ....  day  of  . . . . ,  18 . . ,  the  said  C  D,  (or  person 
unknown,)  at  .  .  . . ,  in  the  county  aforesaid,  went  into  the  .... 
river  to  bathe,  (or  state  the  fact,  as  the  case  may  be,)  and  then 
and  there  casually  and  accidentally  was  drowned  in  the  water  of 
said  river,  and  by  means  of  which  the  said  0  D,  (or  person 
unknown,)  then  and  there  died,  and  so  we  the  said  jurors  say  that 
said  C  D,  (or  person  unknown,)  in  the  manner  and  by  the  means 
aforesaid,  casually,  accidentally  and  by  misfortune  came  to  his 
(or  her)  death,  and  not  otherwise. 

FINDING  IN  CASE  OF   3IARKS   OF  VIOLENCE,  AND  THE  PERPETRATOR 

UNKNOWN. 
No.  129. 

That  on  the  ....  day  of  . . . . ,  18 . . ,  the  said  C  D,  was  foimd 
lying  dead  on  the  highway  in  . . .  .,  in  said  county,  (or  as  the  case 
may  be,)  and  that  the  body  of  said  C  D  when  so  found  as  afore- 
said, appeared  to  have  been  stabbed  twice  with  some  sharp  instru- 
ment, (or  otherwise  as  the  case  may  be,)  in  or  near  the  left  breast, 
(or  otherwise  as  the  case  may  be,)  and  thereby  received  a  mortal 
wound  inflicted,  by  some  person  to  the  jurors  unknown,  and  so 
the  jurors  aforesaid  say  that  the  said  C  D,  (or  person  unknown,) 
came  to  his  death  by  the  said  wounds  (or  injuries)  appearing  upon 
his  body  as  aforesaid. 

FINDING  IX  CASE  OF  FEMALE  INFANT. 
IS^o.  130. 

That  the  body  of  said  female  infant  was  found  lying  entirely 
naked  and  dead,  in  a  yard  of  E  F,  in  the  town  of  .  .  . .,  in  said 
county,  on  the  ....  day  of  . . .,  18. .,  (or  in  a  barn  or  out-house 
as  the  case  may  be;)  that  the  said  body  of  said  female  infant,  when 
so  found  appeared  to  have  received  an  injury  on  the  head  and 
body,  (or  state  such  marks  of  violence  or  injury  as  there  were;)  that 
said  female  infant  at  the  time  of  her  death  was  of  the  age  of  about 

,  and   that  the  parents,  or  guardians   of  said  infant  are 

to  the  jurors  unknown,  and  the  said  jurors  say  that  said  infant 
came  to  her  death,  by  means  of  violence  and  injuries  received  as 
aforesaid,  from  some  person  or  persons  to  the  jury  unknown,  (or 
state  any  other  finding  of  the  jury.) 


TESTIMONY    OP    WITNESSES.  317 

FINDING  IN  CASE  OF   NATURAL  DEATH. 
No.  131. 

That  the  said  C  D,  (or  person  unknown,)  on  the  ....  day  of 
. . . . ,  18  . .,  was  found  lying  dead  on  the  common,  (or  park,  or 
highway,  or  street,)  in  the  city  of  . .  .  . ,  in  said  county,  and  that 
he  had  no  marks  of  violence  appearing  on  his  body;  and  so  the 
jurors  do  say  that  the  said  C  D,  (or  person  unknown,)  died  in  a 
natural  way  and  not  otherwise. 

The  beginning  and  conclusion  of  the  inquisition  made  by  the 
jurors  can  be  in  the  form  pointed  out  by  the  statute  in  any  of  the 
above  cases. 

To  be  attested. — The  findings  thus  made,  in  writing,  should 
be  attested  by  the  coroner,  and  may  be  as  follows: 

"  Attested  this  ....  day  of  . . . . ,  18 . . 

C . . . .  D . . . . ,  Coroner.'''' 

III.     TESTIMONY  AND  WITNESSES. 

The  statute  requires  the  testimony  to  be  reduced  to  writing, 
by  direction  of  the  coroner,  and  with  the  inquisition,  returned  l)y 
the  jury  to  him,  should  be  by  him  returned  to  the  clerk  of  the 
District  Court  of  the  county,  with  a  list  of  the  material  witnesses. 
The  following,  forms  may  be  used  for  this  purpose. 

FOR   TAKING  THE  TESTI3I0NY  BEFORE  CORONER. 
No.  13S. 

State  of  Iowa, 


ss 
County. 


At  an  inquisition  held  at  . . . .,  in  said  county  on  the  ....  day 
of  .  .  . .,  18.  .,  before  C  D,  coroner  of  said  county,  and  E  F,  G  H, 
and  I  J,  three  electors  of  said  county,  duly  suinmcmed  and  sworn 
to  in(|uire  into  and  a  true  presentment  make  when,  how  uud  by 
what  means  K  L,  (or  a  person  unknown,)  whose  body  lay  there 
dead  befftre  them,  came  to  his  death,  the  following  testimony  was 
taken  in  writing  by  O  P,  by  direction  of  said  coroner  to  wit: 

M  N,  of  lawful  age  being  produced,  sworn  and  examined,  tes- 
tified as  follows: 

[II(;re  insert  in  a  narrative  form,  the  testimony  of  the  witness 
on  the  inffuisition  which  should  be  subscribed  and  sworn  to  in 
the  following  form.] 

M....   N.... 

Subscribed  and  sworn  to  by  the  said  M  N,  before  me  this  .... 
day  of  ....,  18.. 

C D ,  Coroner,. 


318  THE    CORONER. 

Proceed  in  this  manner  with  all  the  witnesses,  and  when  com- 
pleted, and  the  jurors  have  returned  their  inquisition  in  writing, 
attach  the  same  to  the  written  testimony,  to  which  a  certificate  in 
the  following  form  may  be  made  and  attached,  and  the  whole 
returned  to  the  clerk  of  the  District  Court  as  required  by  law. 

FORM    OF   CERTIFICATE  OF  CORONER. 
No.  133. 

State  of  Iowa,      "I 
County,      j 

I,  C  D,  coroner  of  said  county,  hereby  certify  and  return,  that 
the  foregoing  is  the  testimony  of  the  witnesses  sworn  and  exam- 
ined before  me,  and  the  jurors  aforesaid,  taken  at  the  inquisition. 
as  aforesaid,  and  that  the  inquisition  hereto  attached,  was  made 
by  said  jurors,  and  returned  to  me  as  aforesaid,  and  that  M  N, 
O  P,  (and  the  other  witnesses  naming  them,)  testified  to  material 
matter  on  said  inquisition. 

Witness  my  hand  this  ....  day  of  . . . . ,  18 . . 

C . . . .    D . . . . ,   Coroner. 


IV.    THE  CORONER'S  FEES. 
In  regard  to  his  fees  the  Code  provides: 

Section  3799.     Tlie  coroner  is  entitled  to  charge  and  receive  the  following  fee  : 

For  a  view  of  each  body  and  taking  and  returning  an  inquest  on  same,  five  dollars  ; 

For  a  view  of  each  body  and  examination  without  inquest,  three  dollars; 

For  issuing  subpoena,  or  order  for  a  jury,  twenty-five  cents ; 

For  each  mile  traveled  to  and  returning  from  an  examination  or  inquest  ten  cents ; 

Which  fee  shall  be  paid  out  of  the  county  treasury  when  they  cannot  be  obtained 
from  the  estate  of  the  deceased ; 

For  all  other  services,  the  same  fees  as  are  allowed  sheriffs  in  similar  cases,  to  be 
paid  in  like  manner. 

Witness,  surgeons  and  jurors  fees. — It  is  customary  for 

the  coroner  to  certify  to  the  correctness  of  the  claims  of  witnesses, 
surgeons,  and  jurors  summoned  on  an  inquisition  held  before 
him,  as  well  as  to  any  expenses  incurred  in  the  burial  of  the 
deceased,  where  no  property  is  found  on  the  body  with  which  to 
pay  these  expenses;  and  these  claims,  together  with  the  fees  of 
the  coroner  duly  verified,  should  be  filed  with  the  auditor  of  the 
county  for  allowance  by  the  board  of  supervisors  at  their  subse- 
quent meeting. 


WITNESS   FEES.  319 

It  may  be  here  remarked,  that  the  fees  of  the  witnesses  in  such 
cases  are  the  same  as  before  justices  of  the  peace,  that  is,  fifty 
cents  per  day,  and  five  cents  a  mile  each  way.  There  seems  to 
be  no  express  provision  of  the  statute  for  jurors  fees  in  such  case, 
but  they  should  be  allowed  a  reasonable  compensation  by  the 
board,  as  well  as  the  surgeon  who  may  be  summoned  to  examine 
the  body. 


320 


NOTARIES   PUBLIC. 


OHAPTEK  XXXYII. 


NOTARIES  PUBLIC. 

T.    THE  OFFK^E,  AND  EVIDENCE, 

Notaries  are  of  very  ancient  orifrin;  they  were  well  known 
among  the  Romans,  and  exist  in  every  State  of  Europe,  particu- 
larly on  the  Continent.  Their  acts  have  long  been  respected  by 
the  custom  of  merchants  and  by  the  courts  of  all  nations.  They 
are  appointed  by  the  executive,  or  other  appointing  power,  under 
the  laws  of  the  different  States,  and  their  duties  are  generally 
prescribed  by  such  laws. 

Act  of  Congress  in  relation  to  notaries.— By  act  of 

Congress,  Sept.  16, 1850,  it  is  provided:  "  That  in  all  cases  in  which 
under  the  laws  of  the  United  States,  oaths  or  affirmations  or 
acknowledgments  may  now  be  taken  or  made  before  any  justice, 
or  justices  of  the  peace  of  any  State  or  Territory,  such  oath,  affirma- 
tions or  acknowledgements  may  be  hereafter  also  taken,  or  made 
by  or  before  any  notary  public,  duly  appointed  in  any  State  or 
territory;  and  when  certified  under  the  hand  and  official  seal  of 
such  notary,  shall  have  the  same  force  and  effect  as  if  taken  or 
made  by  or  before  such  justice,  or  justices  of  the  peace.  And  all 
laws,  and  parts  of  laws,  for  punishing  perjury  or  subornation 
of  perjury,  committed  in  any  such  oaths  or  affirmations,  when 
taken  or  made  before  any  such  justice  of  the  p-^ace,  shall  apply 
to  any  such  offense  committed  in  an}^  oaths  or  affirmations  which 
may  be  taken  under  this  act  before  a  notary  public,  or  commis- 
sioner, as  hereinafter  named:  Provided  alica^/s,  That  on  any 
trial  for  either  of  these  offenses,  the  seal  and  signature  of  the 
notary,  shall  not  be  deemed  sufficient  in  themselves  to  establish 


STATUTES — APPOINTMEXTS DUTIES.  321 

the  oflScial  character  of  such  notary,  but  the  same  shall  be  shown 
by  other  and  proper  evidence."     Minot's  Statutes  at  Large,  458. 

II.     STATUTES    OF   IOWA— APPOINTMENT— DUTIES. 

The  following  are  the  provisions  of  the  Code  in  reference  to 
Notaries  Public: 

For  what  time  appointed,— Section  258.  The  governor  may  appoint  and  com- 
mission one  or  more  notaries  public  in  each  county,  and  may  at  any  time  revoke  such 
appointment.  The  commissions  of  all  notaries  public  heretofore,  or  hereafter,  issued 
prior  to  the  fourth  day  of  July,  A.  D.,  1876,  shall  expire  on  that  day,  and  commis- 
sions subsequently  issued  shall  be  for  no  longer  period  than  three  years,  and  all  such 
commissions  shall  expire  on  the  fourth  day  of  July  in  the  same  year.  The  secretary 
of  state  shall,  on  or  before  the  first  day  of  June,  A.  D.  1876,  and  every  three  years 
thereafter,  notify  each  notary  v/hon  his  commission  will  expire. 

What  done  before  commission  issued.— Sec.  259.  Before  any  such  commis- 
sion is  delivered  to  the  person  appointed,  he  shall : 

1.  Procure  a  seal  on  which  shall  be  engraved  the  words  "  notarial  seal "  and 
"  Iowa,"  with  his  surname  at  length,  and  at  least  the  initials  of  his  christian  name; 

2.  Execute  a  bond  to  the  state  of  Iowa  in  the  sum  of  five  hundred  dollars,  con- 
ditioned for  the  true  and  faithful  execution  of  the  duties  of  his  office,  which  bond 
shall  be  approved  by  the  clerk  of  the  district  court  of  the  proper  county; 

3.  Write  on  said  bond,  or  a  paper  attached  thereto,  his  signature,  and  place 
thereon  a  distinct  impression  of  his  official  seal ; 

4.  File  such  bond  with  attached  papers,  if  any,  in  the  office  of  the  secretary  of 
state  ; 

5.  Remit  to  such  secretary  the  fee  required  by  law  ; 

When  thesecretary  of  state  is  satisfied  that  the  foregoing  particulars  have  been  fully 
complied  with,  he  shall  deliver  the  commission  to  the  person  appointed. 

Secretary  to  forward  copy. — Sec.  260.  When  the  secretary  of  state  delivers  the 
commission  to  the  person  appointed,  he  shall  make  a  certified  copy  thereof  ;;nd  for- 
ward the  same  to  the  clerk  of  the  district  court  of  the  proper  county,  who  shall  file 
and  preserve  the  same  in  his  office,  and  it  shall  be  deemed  sufficient  evidence  to 
enable  such  clerk  to  certify  that  the  person  so  commissioned  is  a  notary  public 
during  the  time  such  commission  is  in  force. 

Revocation. — Sec.  261.  Should  the  commission  of  any  person  appointed  notary 
public  be  revoked  by  the  governor,  the  secretary  of  state  shall  immediately  notify 
such  person,  and  the  clerk  of  the  district  court  of  the  proper  county,  through  the 
mail. 

Powers. — Sec.  262.  Each  notary  is  invested  with  the  powers  and  shall  perform 
the  duties  which  pertain  to  that  office  by  the  custom  and  law  of  merchants. 

Keep  record  of  notices  sent. — Sec.  26."?.  Every  notary  public  is  required  to 
keep  a  true  record  of  all  notices  given  or  sent  by  him,  with  the  time  and  manner  in 
which  the  same  were  given  or  sent,  and  the  names  of  all  the  parties  to  whom  the  same 
were  given  or  sent,  with  a  copy  of  the  instrument  in  relation  to  which  the  notice  is 
served,  and  of  the  notice  itself. 

Vacancy:  records  to  be  deposited:  when. — Sec.  264.  On  the  death,  rcsign.a- 
fion,  or  removal  from  office,  of  any  notary,  his  records  with  all  his  official  papers, 
shall,  within  three  months  therefrom,  be  deposited    in  Ihe   office   of  the  clerk  of  the 

21 


332  NOTAKIES    PUBLIC. 

district  court  in  the  county  for  which  such  notary  sh;ill  have  been  appointed;  and  ii 
any  notary,  on  his  resignation  or  removal,  neglects  for  three  months  so  to  deposit 
them,  he  shall  be  held  guilty  of  a  misdemeanor  and  be  punished  accordingly,  and  be 
liable  in  an  action  to  any  person  injured  by  such  neglect;  and  if  an  executor  or 
administrator  of  a  deceased  notary  willfully  neglects  for  three  months  after  his  accept- 
ance of  that  appointment,  to  deposit  the  records  and  jxipers  of  a  deceased  notary 
which  came  into  his  hands  in  said  clerk's  office,  he  shall  be  held  guilty  ,of  a  misde- 
meanor and  pvmished  accordingly. 

Removal;  resignation. — Sec.  265.  If  a  notary  remove  his  residence  from  the 
county  for  which  he  was  appointed,  such  removal  shall  be  taken  as  a  resignation. 

Duty  of  clerk. — Skc.  260.  Each  clerk  aforesaid  shall  receive  and  safely  keep  all 
such  records  and  papers  of  the  notary  in  the  cases  above  named,  and  shall  give 
attested  copies  of  them  under  the  seal  of  his  court,  for  which  he  may  demand  such 
fees  as  by  law  may  be  allowed  to  the  notaries,  and  such  copies  shall  have  the  same 
effect  as  if  certified  by  the  notary. 

Regulations  of  the  Executive  Department.— The  fol- 
lowing regulations  have  been  made  by  the  Executive  of  the  State 
in  reference  to  the  appointment  of  notaries: 

ST.\TE  OF  IOWA,      1 

Executive  Department,  >• 

April,  1874.  J 

The  attention  of  those  who  desire  the  performance  of  specific  acts  by  the  Execu- 
tive, is  respectfully  invited  to  the  following  regulations  and  usages  of  this  department: 

NOTARIAL    COMMISSIONS. 

I.  Every  application  for  appointment  to  the  office  of  notary  public  should  be 
accompanied  by  a  recommendation  stating  that  the  applicant  has  proper  qualifications, 
in  point  of  ability  and  integrity,  for  such  commission;  and  that  he  has  resided  in  the 
State,  and  in  the  county  in  and  for  which  he  desires  appointment,  a  sufficient  length 
of  time  to  entitle  him  to  vote  therein.  Such  recommendation  should  be  made  or  . 
indorsed  by  a  member  of  the  General  Assembly,  a  State  officer,  a  District  or  Circuit 
judge,  a  District  Attorney,  or  county  officers. 

II.  The  application  may  be  made  directly  to  the  Governor,  through  the  Secretary 
of  State,  and  should  be  accompanied  by  the  fee,  ^1.25.  It  is  desired  that  the  first  or 
other  given  name  be  furnished  in  full  for  insertion  in  the  commission. 

III.  The  commission,  when  issued  by  the  Governor,  will  be  forwarded  by  the 
Secretary  of  State. 

IV.  No  jjerson  can  be  a  notary  for  more  than  one  county.  In  case  a  notary  pub- 
lic remove  from  the  county  in  and  for  which  he  is  or  may  be  appointed,  he  is  required 
to  communicate  the  fact  of  such  removal,  with  the  date  thereof,  to  the  Secretary  of 
State. 

V.  The  seal  of  a  notary  tnust  have  engraved  thereon  his  surname  at  length,  and  at 
least  the  initials  of  his  Christian  name,  with  the  words  "  notarial  seal  "  and  "  Iowa." 
Lacking  cither  of  these  requirements,  a  seal  is  worthless. 

VI.  No  minor  will  be  appointed  a  notary  public. 

VII.  Upon  the  resignation  of  a  notary  public,  or  his  removal  from  the  county  for 
which  he  is  appointed,  he  will  also  be  required,  before  being  commissioned  for 
another  county,  to  transmit  to  the  Secretary  of  State  a  certificate  of  the  clerk  of  the 
District  Court  of  the  county  from  which  he  removes,  that  such  notary  public  has 


STATUTES — APPOINTMENTS — DUTIES.  333 

made  with  said  clerk  the  deposit  of  records  and  official  papers  required  by  sections 
263  and  2G4  of  the  Code,  or  else  a  certificate  from  himself  that  he  has  done  no 
official  business  demanding  such  record. 

The  mode  of  proceeding  suggested  by  the  statute  to  secure  a 
commission  as  notary  public,  is  to  request  the  Governor  of  the 
State,  by  petition  or  otherwise,  to  appoint  and  commission  the 
applicant  as  notary  public  in  the  county  in  which  he  resides. 

PETITION  FOR  THAT  PURPOSE. 
No.  134. 

To  the  Governor  of  the  State  of  Iowa: 

The  undersigned  respectfully  recommend  A  B,  of  ... .  county, 
Iowa,  as  a  person  of  the   proper  age,   qualifications,  ability,  and 

integrity,  for  a  notary  public  in  and  for county,  where  he 

has  resided  for  the  last  ....  years. 

And  they  request  that  he  may  be  appointed  and  commissioned 
as  notary  public  in  and  for  said  county. 

Witness  our  hands  this  ....  day  of  . . . . ,  18 . . 

C...   D 

E....    F...., 

G. . . .   H. . . .,  etc. 

If  the  Governor  complies, — If  the  Governor  complies  with 
the  request,  he  will  so  advise  the  applicant  through  the  Secretary 
of  State,  whereupon  the  applicant  should  procure  a  seal  on 
which  should  be  engraved  the  w^ords,  "  Notarial  Seal,"  and 
Iowa,"  with  the  surname  of  the  applicant,  and,  at  least,  the 
initials  of  his  Christian  name. 

BOND  OF  NOTARY  PUBLIC. 
No.  13.5. 

Know  all  men  by  these  Presents  : 

That  we, ,   as  principal,  and ,  as  sureties, 

of  the  county  of  . .  . .,  in  the  State  of  Iowa,  are  held  and  firmly 
bound  unto  the  county  of  . .  . .,  in  said  State,  in  the  penal  sum  of 
five  hundred  dollars,  for  the  payment  of  which  sum  well  and 
truly  to  be  made,  we  bind  ourselves,  jointly  and  severally,  firmly 
by  tliese  presents. 
"  Dated  the day  of ,  A.  D.  18 . . 

The  above  bond  is  to  be  void  upon  condition  that  as  notary 

public,  of  said  State  in  and   for  said  county,  the  said , 

will  rf;ndcr  a  true  account  of  his  ofTice,  and  of  hih  doings  therein, 
to  the  proper  authority,  when  retjuircd  thereby  or  by  law;  that  he 
will  promptly  pay  over  to  the  ])prson  or  officer  entitled  thereto, 
all  money  which  may  come  into  his  hands  by  virtue  of  hi&  officei 


324  NOTARIES   PUBLIC. 

that  he  will  promptly  account  for  all  balances  of  money  remain- 
ing in  his  hands  at  the  termination  of  his  office;  that  he  will  here- 
after exercise  all  reasonable  diligence  and  care  in  the  preservation 
and  lawful  disposal  of  all  money,  books,  papers,  securities  or 
other  property  appertaining  to  his  said  office,  and  deliver  them 
to  his  successor  or  to  any  other  person  authorized  to  receive  the 
same,  and  that  he  will  faithfully  and  impartially,  without  fear, 
favor,  fraud  or  oppression,  discharge  all  the  other  duties  now  or 
hereafter  required  of  his  office  by  law. 

Witness  our  hands  on  the  day  and  in  the  year  above  written. 


The  above  bond  is  approved,  as  to  form  and  manner  of  execu- 
tion, and  also  of  the  sureties  thereto. 

J....  C...  D...., 
Clerk  of  the  District  Court  of  said  county. 

State  of  Iowa,      ) 
....    County.  ) 

I, ,  do  solemnly  swear  that  I  will  support  the  Consti- 
tution of  the  United  States  and  the  Constitution  of  the  State  of 
Iowa,  and  that  to  the  best  of  my  knowledge  and  ability,  I  will 
perform  all  the  duties  of  the  office  of  notary  public  of  said  State, 
in  and  for  ....  county,  as  provided  by  the  condition  of  my  bond 
above  written.  

Subscribed  and  sworn  to  before  me  this  ....  day  of  . . . . , 
A.  D.  18..  


The  seal  to  be  impressed  on  the  bond.— On  such  bond 

duly  approved  should  be  made  a  distinct  impression  of  the  seal  of 
the  notary,  and  the  written  signature  of  the  applicant,  and  the 
same  filed  with  the  Secretary  of  State,  and  his  fees  paid. 

Fees  in  such  cases,  are  as  follows: 
For  the  commission,  $1.25. 

III.  LAW  RELATING  TO  HIS  DUTIES— DEPOSITIONS- 
PROTEST,  ETC. 

By  the  statute,  the  notary  is  invested  with  the  powers,  and  may 
perform  the  duties  which  pertain  to  that  office  by  the  custom  and 
law  of  merchants.  The  most  common  of  these  duties  are  to 
administer  oaths,  take  depositions,  take  the  acknowledgements  of 


LAW    RELATING    TO    DUTIES,    ETC.  325 

deeds  and  other  instruments    in   writing,  and  protest  notes,  bills 
of  exchange,  etc. 

DaVS  of  grace. — Bills  of  exchange  and  promissory  notes, 
negotiable  or  otherwise,  payable  at  a  certain  day,  are  by  the 
custom  and  law  of  merchants,  not  payable  until  the  third  day 
after  the  day  expressed  for  payment.  These  are  called  "  days  of 
grace,"  and  no  action  can  be  brought  on  these  instruments  until 
they  have  expired. 

The  owner  of  negotiable  paper  may  hold  the  same  so  long  as 
he  pleases,  and  not  lose  his  claim  against  the  maker  of  a  note, 
or  the  acceptor  of  a  bill,  unless  he  is  cut  off  by  the  statute  of 
limitations. 

But  in  order  to  hold  the  indorser  of  a  note,  he  must  have  notice 
as  required  by  the  statute,  of  a  demand  and  non-payment  of  the 
note,  or  the  protest  thereof  for  non-payment,  and  the  drawer  and 
indorser  of  a  bill  must  have  notice  of  the  non-acceptance  or  non- 
payment of  the  same,  or  of  the  protest  thereof  for  non-accept- 
ance or  non-payment  as  required  by  law. 

The  Code  provides  in  reference  to  notice,  demand,  and  pro- 
test as  follows: 

GUAKANTEE. 

Definition  of. — Section  2089.  The  blank  indorsement  of  an  instrument  for  the 
payment  of  money,  property,  or  labor,  by  a  person  not  a  payee,  indorsee,  or  assignee 
thereof,  shall  be  deemed  a  guarantee  of  the  performance  of  the  contract. 

Guarantor:  how  charged. — -Sec.  2090.  To  charge  such  guarantor,  notice  of 
non-payment  by  the  principal  must  be  given  within  a  reasonable  time;  but  the  guar- 
antor is  chargeable  without  notice,  if  the  holder  show  affirmatively  that  the  guarantor 
has  received  no  detriment  from  the  want  of  notice. 

Sec.  2091.  A  guarantor,  as  contemplated  in  the  two  preceding  sections,  is  also 
liable  to  the  action  of  an  indorsee,  assignee,  or  payee,  if  due  diligence  in  the  institu- 
tion and  prosecution  of  a  suit  against  the  maker  or  his  representative  has  been  used. 

G  RACE PROTEST. 

Grace. — Sec.  2092.  Grace  shall  be  allowed  upon  negotiable  bills  or  notes  payable 
within  this  state,  according  to  the  principles  of  the  law  merchant ;  and  notice  of  non- 
acccptarcc  or  non-payment,  or  both,  of  said  instruments  shall  be  required  according 
to  the  rules  and  principles  of  the  commercial  law. 

Demand. — Sec.  2093.  A  demand  at  any  time  during  the  days  of  grace,  will  be 
sufficiint  for  the  purpose  of  charging  the  indorser. 

Holidays:  protests  made  on  preceding  day. — Sec.  2094.  Tlic  first  day  of  the 
week,  called  .Sunday;  the  first  day  of  Janu.iry,  the  fourth  day  of  July;  the  twenty- 
fifth  day  of  December;  and  any  day  appointed  or  recommended  by  the  governor  of 


326  NOTARIES    PTTBLIC. 

this  state,  or  by  the  president  of  the  United  Slates,  as  a  day  of  fasting  or  thanksgiv- 
ing, shall  be  regarded  as  holidays  for  all  purposes  relating  to  the  presenting  for  pay- 
ment or  acceptance,  and  the  protesting  and  giving  notice  of  the  dishonor  of  bills  of 
exchange,  bank  checks,  and  promissory  notes ;  and  any  bank  or  mercantile  paper 
falling  due  on  any  of  the  days  above  named,  shall  be  considered  as  flilling  due  on  the 
preceding  day. 

Notice  of  protest:  how  served. — Sec.  2095.  In  case  of  a  demand  of  payment 
of  any  promissory  note,  bill  of  exchange,  or  other  commercial  p>aper,  by  a  notary 
public,  and  a  refusal  by  the  maker,  drawer,  or  acceptor,  as  the  case  may  be,  the 
notary  making  said  demand  may  inform  the  indorser,  or  any  party  to  be  charged,  if 
in  the  same  town  or  township,  by  notice  deposited  in  the  nearest  post-office  to  the 
I>arties  to  be  charged  on  the  day  of  demand,  and  no  other  notice  shall  be  necessary  to 
charge  said  party. 

Damages  for  non-acceptance  or  non-payment. — Sec.  2096.  The  rate  of  dam- 
ages to  be  allowed  and  paid  upon  the  non-acceptance  or  nonpayment  of  bills  of 
exchange,  drawn  or  indorsed  in  this  state,  when  damage  is  recoverable,  shall  be  as 
follows:  If  the  bill  be  drawn  upon  a  person  at  a  place  out  of  the  United  States,  or  in 
California,  Oregon,  Nevada,  or  any  of  the  Territories,  five  per  cent  upon  the  princi- 
pal specified  in  the  bill,  with  interest  on  the  same  from  the  time  of  the  protest;  if 
drawn  upon  a  person  at  any  other  place  in  the  United  States,  other  than  in  this 
state,  three  per  cent  with  interest. 

Mode  of  computing  time. — If  a  bill  or  note  is  payable  in 
a  certain  number  of  days  from  date,  sight,  or  demand,  in 
counting  these  days,  the  day  of  the  date,  sight,  or  demand,  is 
excluded,  and  the  day  on  which  it  falls  due  is  included.  A  note, 
therefore,  dated  on  the  first  day  of  May  and  payable  in  sixty 
days,  would,  with  the  days  of  grace,  become  due  on  the  third  of 
July. 

Demand,  when  made. — The  demand  may  be  made  at  any 
time  on  the  day  the  bill  or  note  falls  due.  If  a  note  or  bill  is 
payable  on  demand,  the  demand  should  be  made  in  a  reasonable 
time,  and  if  no  time  is  expressed,  it  is  held  payal)le  on  demand. 
But,  under  our  statutes,  it  will  be  observed  that  a  demand  dur- 
ing the  days  of  grace,  at  any  time,  is  sufficient  to  charge  an 
indorser. 

Where  the  demand  should   be  made.— The    demand 

should  be  made  at  the  place  of  business  of  the  maker,  or  accep- 
tor, within  business  hours,  or  at  the  place  of  payment,  where  it  is 
expressed;  and  where  he  has  no  place  of  business,  it  should  be 
made  at  bis  dwelling  house.  If  a  place  of  payment  is  designated, 
a  presentment  there  to  any  person.,  or  at  the  door  of  the  house,  if 
it  be  closed  up,  is  sufficif^nt. 


LAW    RELATING    TO    DUTIES,    ETC.  327 

If  the  payer  has  absconded,  demand  should  be  made  at  his  last 
place  of  residence. 

Where  a  bill  or  note  is  not  presented  for  payment,  or  not  pre- 
sented at  the  time  required  by  law,  all  the  parties  but  the  maker 
or  acceptor  are  discharged. 

The  presentation  may  be  made  by  any  party,  but  in  case  of  a 
foreign  bill,  there  should  be  a  regular  protest  by  a  notary,  and 
usually  all  bills,  if  not  accepted,  and  all  bills  and  notes,  if  unpaid, 
are  protested. 

The  bill,  in  case  of  protest,  should  be  presented  by  the  notary 
himself. 

Notice  of  the  presentment  and  demand  of  payment,  and  non- 
payment of  a  bill  or  note,  should  be  given  to  all  indorsers  of  the 
same,  that  it  is  desired  to  hold  responsible  therefor,  but  notice  of 
protest  is  sufficient  notice  of  demand  and  refusal. 

The  notice  and  protest  should  describe  the  bill  or  note  suf- 
ficiently to  identify  it.  No  copy  of  the  protest  need  be  sent 
to  indorsers,  but  information  of  the  protest  should  be  given 
them. 

The  statute  provides  that  the  service  of  notice,  where  the 
party  to  be  charged  resides  in  the  same  town,  may  be  made  by 
depositing  the  same  in  the  nearest  postoffice  to  the  party  on  the 
day  of  the  demand.  In  other  cases  the  notice  may  be  deposited 
on  the  day  of  the  demand  in  the  postoffice,  and  directed  to  the 
party  to  be  charged,  at  the  nearest  postoffice  to  his  residence,  or 
to  the  place  of  his  residence,  or  to  the  place  where  the  notary, 
after  due  diligence  and  inquiry,  deems  his  place  of  residence  to 
be.  Notice  may  be  given  to  any  or  all  of  the  indorsers,  and  may 
be  given  in  all  cases  personally  by  the  notary. 

If  the  party  it  is  desired  to  charge  is  dead,  notice  should  be 
given  to  his  personal  representatives. 

If  the  indorser  directs  notice  to  bo  sent  to  any  place,  it  may  be 
so  sent,  and  it  may  be  presumed,  in  the  absence  of  any  knowledge 
that  can  l)e  ol)tained  as  to  the  residence  of  the  party  to  be 
charged,  after  due  diligence  to  obtain  the  same,  that  his  residence 
is  at  the  place  where  it  was  drawn  or  indorsed,  and  the  notice 
may  be  so  directed. 


328  NOTARIES   PUBLIC. 

A  demand  at  any  time  during  the  days  of  grace   will  be  suf- 
ficient, under  the  statute,  to  charge  an  indorser. 

The  following  forms  may  be  used  by  the  notary  on  protest: 

PROTEST  OF  A  NOTE  FOR  NON-PAYMENT. 
No.  13G. 

State  of   Iowa, 


County,       i ' 


I,  Gr  "W,  a  notary  public  of  said  State,  within  and  for  said 
county,  hereby  certify,  that  at  the  request  of  C  D,  [insert  the 
name  of  the  holder  of  the  note,]  1  did  on  the  ....  day  of  .  .  .  . , 
18. .,  present  for  payment  the  promissory  note  hereto  attached,  to 
E  F,  the  maker  of  said  note  at  his  place  of  business  in  the  city  of 
. . . .,  in  said  county,  and  demanded  payment  thereof  which  was 
refused;  and  thereupon  at  the  request  of  the  said  C  D,  I  did 
protest  and  by  these  presents  do  solemnly  and  publicly  protest, 
as  well  against  the  maker  and  indorsers  of  said  note,  as  against 
all  others  whom  it  may  concern  for  exchange,  costs,  damages 
already  incurred  and  to  be  hereafter  incurred  for  failure  to  pay 
the  same. 

And  I  do  further  certify,  that  on  ^he  day  aforesaid,  notice  of 
the  protest  aforesaid,  was  given  to  G  H  and  I  J,  indorsers  thereon 
personally  ( or  by  depositing  said  notice  in  the  post-office,  postage 
paid,  at  said  city  of  . .  . .,  and  directed  severally  to  each  of  said 
indorsers  at  the  place  of  residence  of  each  respectively,  or  in  case 
the  indorsers  reside  in  the  same  town;  by  depositing  the  notice 
thereof  in  the  post-office  in  said  city,  postage  paid,  and  directed 
to  the  said  indorsers,  residents  of  said  cit}-;  said  post-office  being 
the  nearest  post-office  to  the  said  parties.) 

Witness  m}-  hand  and  notarial  seal  this  ....  day  of  . .  . . ,  18. . 

G . . . .  W. . . . ,  Notary  Public. 
Fees: — 
For  protest  $0.75. 

For  register  protest       .50. 

ANOTHER  FORM  OF  PROTEST  ON  NON-PAYMENT. 
No.  137. 

State  of  Iowa,  ) 
County.  [ 

I,  A  B,  a  notary  public  of  said  State  within  and  for  said  county, 
do  hereby  certify  that  at  the  request  of  C  D,  [insert  the  name  of 
the  holder  of  tl>3  note,]  [*]  I  did  on  the  ....  day  of  . .  . .,  18. . , 
present  for  payment  the  promissory  note  hereto  attached,  at  the 
banking  house  of  .  .  . . ,  in  the  city  of  . . . . ,  in  said  county,  where 
the  same  is  made  payable,  and  demanded  payment  thereof,  which 
was  refused;  and  thereupon,  [conclude  as  in  the  last  form.] 


LAW   BELATING   TO   DUTIES,   ETC.  329 

^^       ^  ^^     ANOTHER  FORM  OF  PROTEST  ON  NON-PAYMENT. 
Tho,  138. 

State  of  Io"vva,       ) 

County,  j  ^^• 

I,  A  B,  (same  as  in  last  form  to  [*]  and  then  add,)  I  did  on  the 
....  day  of  . . . . ,  18 . . ,  for  the  purpose  of  presenting  and  demand- 
ing payment  of  the  promissory  note  (or  bill,)  hereto  attached 
make  diligent  search  and  inquiry  for  E  F,  the  maker  of  said  note, 
(or  drawee  of  said  bill,)  and  his  place  of  business,  and  dwelling 
house  in  the  city  of  .  . . . ,  in  said  county  where  said  note  (or  bill,) 
is  made  payable;  but  was  unable  to  find  the  said  E  F,  (or  the 
drawee,)  or  his  place  of  business,  or  his  dwelling  house,  and  was 
therefore  unable  to  make  a  demand  of  the  payment  of  the  same. 

And  I  do  further  certify,  [concluding  as  in  form  No.  136,  with 
the  requisite  change  to  suit  the  facts  where  the  maker  or  drawee 
cannot  be  found.] 

ANOTHER  COMMON  FORM  OF  PROTEST. 
N"o,  139. 

State  of  Iowa,       ) 
County,  j 

£e  it  knowti,  that  on  this     . . .  day  of    . . . . ,  A.   D.,  18 . . ,  I 

,  a  notary  public  in  and  for  said  county  and  State,  duly 

appointed,  commissioned   and  qualified,  at   the  request  of   .... 

,  the  holder  of  the  original  ....  presented  the  annexed  .... 

at  .  .  . . ,  in  the  town  of  .  .  . . ,  Iowa,  to  ....    and  demanded   .... 

which  was  refused 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  have 
protested,  and  do  solemnly  protest,  as  well  against  the  ....  and 
indorser  of  said  ....  as  against  all  others  concerned  therein,  for 
exchange,  re-exchange,  and  all  costs,  charges,  damages  and  inter- 
est, suffered,  by  reason  of  the  non. .  .  .  of  said  original 

And  I  do  further  certifij^  that  on  the  same  day  and  year  above 
written,  I  gave  notice  to  the  ....  and  indorser  of  said  ...  of 
the  non.  ...  of  the  same,  in  writing  and  print,  and  put  into  the 
post-office  at  . . . .,  Iowa,  postage  pre-paid,  as  follows,  to- wit: 

A  notice  for directed  to 

A  notice  for directed  to 

A  notice  for directed  to 

A  notice  for directed  to 

A  notice  for directed  to 

A  notice  for directed  to 

Each  of  the  above  named  places  being  the  reputed  places  of 
residence  of  the  persons  to  whom  the  notices  were  respectively 
directed. 

In  witness  whereof,  I  have  hereunto  subscribed  my  name  and 

affixed  my  seal  of  office.  ,  Notary  Public. 

Notaky's  Fees. 

For  protest  ^0.75. 

For  recording         .50. 


330  NOTARIES   PUBLIC. 

NOTICE  OP  PROTEST  FOR  NON-ACCEPTANCE. 
No.  140. 

To  A....  B....: 

Notice  is  hereby  g'iven  that  your  bill  for  $....,  drawn  at  sif^ht, 
(or  ....  days  from  sight,)  on  C  D,  has  this  day  been  protested  l)y 
me,  for  non-accejotance  (or,  non-payment).  Witness  my  hand 
and  notarial  seal. 

E....    F...., 
Notary  Public  in  and  for  ....  county^  Iowa. 

NOTICE  OP  PROTEST  FOR  NON-PAYMENT  OF  NOTE. 
No.  141. 

To  A....  B....: 

Notice  is  hereby  given  that  the  note  executed  by  you  to  C  D, 
for  $   . . . ,  dated  . . . . ,  18...,  and  payable  ....  days  after  date  at 
the  banking  house  of  . . . .,  in  . . . .,  Iowa,  and  indorsed   by  E  F, 
and  G  H,  has  this  day  been  protested  by  me  for  non-payment. 
Dated  at     . .  . ,  this  ....  day  of  . .  . . ,  18 .  . 
Witness  my  hand  and  notarial  seal. 

1....   .T...., 
Notary  Public  for  lovxi^  in  and  for  ....  county. 

ANOTHER  FORM  OF   NOTICE. 
No.  143. 

$ ,  loAVA, ,  A.  D.  18 . . 

To .' 

Sir: — Take  notice,  that  on  this  ....  day  of  ....  A.  D.  18.., 
at  the  request  of  the  holder  thereof,  I  protested  for  non- .....  a  ...  . 
of  the  following  description,  to- wit:  Dated  .  . .  .,  18.  . ;  amount, 
$....;  payable  .  .  .  . ;  drawn  by  . .  . .  ;  in  favor  of  . .  . .  ;  drawn  on 

. . , .  ;  made   by  . .  . .  ;   indorsed   by    .  . .  . ,    And  that  .  . . , , 

the  holder.,  thereof,  look.,  to  you  for  payment  of  the   same,  with 
all  costs,  damages,  etc. 

,  Notary  Public. 

IV.     HIS   RECORD. 

The  notary  should  keep  a  record  of  all  notices  given,  or  sent  by 
him,  with  the  time  and  manner  in  which  the  same  were  given  or 
sent,  and  the  names  of  the  parties  to  whom  the  same  were  given 
or  sent,  with  a  copy  of  all  instruments  in  relation  to  which  the 
notice  is  served,  and  of  the  notice  itself. 

This  record  should  embrace  the  certified  protest,  notices,  and 
note,  bill,  or  other  instrument  protested.  A  book  with  the  most 
common  printed  forms  for  this  purpose,  might  be  procured  by 


notaries'  fees.  331 

the  notary  for  greater  convenience,  in  which  forms,  say  Nos.  130 
and  142,  could  be  printed. 

Acknowledgements  and  evidence.— The  Code  provides 

that  notaries  may  administer  oaths,  and  take  and  certify  the 
acknowledgement  of  instruments  in  writing  ;  Code,  Sees. 
377  and  1955;  and  that  the  usual  protest  of  a  notary  public 
without  proof  of  his  signature  or  notarial  seal,  is ^;>r//?irt  fdcie 
evidence  of  what  it  recites  concerning  the  dishonor  and  notice 
therof  of  a  bill  of  exchange  or  promissory  note,  and  that  a  copy 
from  his  record,  properly  certified  to  by  him,  shall  receive  such 
faith  and  credit  as  it  is  entitled  to  by  the  law  and  custom  of  mer- 
chants.    Code,  Sec.   366S. 

A  notary  public  is  a  public  officer,  and  when  he  is  acting  as 
such  de  facto,  though  not  de  jure,  his  acts  cannot  be  collaterally 
assailed.     14  Iowa,  4G4. 

The  official  acts  of  a  notary  should  be  authenticated  by  a  seal 
and  signature;  and  when  the  jurat  of  an  affidavit  is  not  evi- 
denced both  by  the  seal  and  signature  of  the  notary  before  whom 
it  purports  to  have  been  made,  it  is  fatally  defective.  10  Iowa, 
305,  593. 

V.       NOTARIES'  FEES. 

The  Code  provides  for  his  fees  as  follows: 

Section  3801.  Notaries  public  shall  be  entitled  to  cliarge  and  receive  the  follow- 
ing fees : 

For  every  protest  of  a  bill  or  note,  seventy-five  cents; 

For  registering  any  protest,  fifty  cents; 

For  being  present  at  a  demand,  tender,  or  deposit,  and  noting  the  same,  fifty 
cents; 

For  administering  an  oath,  five  cents; 

For  certificate  under  seal,  twenty-five  cents; 

For  certifying  to  the  same  under  his  official  seal,  twenty-five  cents; 

F"or  other  services,  the  same  fees  as  are  allowed  justices  of  the  peace  for  similar 
services. 


PART  SECOND. 


OF  TOWNSHIP   OFFICERS. 


ELECTION,    QUALIFICATION,   AND   DUTIES.  335 


CHAPTER    1. 


TOWNSHIP    OFFICERS. 


I.    ELECTION,  QUALIFICATION  AND  DUTIES. 
The  provisions  of  the  Code  relating  thereto  are  as  follows: 

Officers  of. — Section  389.  In  each  township  there  shall  be  elected  three  trus- 
tees, one  clerk,  one  assessor,  two  constables,  and  two  justices  of  the  peace,  but  where 
a  city  or  incorporated  town  is  situate  in  a  township,  the  trustees  of  the  township 
may  order  the  election  of  one  or  two  additional  justices  and  constables,  and  at  least 
one  justice  and  constable  shall  reside  within  the  limits  of  such  city  or  town. 

When  township  contains  a  city  or  town. — Sec.  390.  In  any  township  in  which 
is  situate  any  city  or  incorporated  town,  two  township  assessors  shall  be  elected,  one 
by  the  voters  of  said  township  residing  without  the  corporate  limits  of  such  city  or 
town,  at  the  general  election,  and  the  other  by  the  voters  thereof  residing  within  such 
limits  at  the  municipal  election  in  such  city  or  town,  and  each  in  the  discharge  of  his 
duties  as  assessor  shall  be  confined  to  that  portion  of  his  township  in  which  he  is 
elected  as  hereinbefore  provided;  and  said  city  or  town  assessor  shall  hold  his  office 
for  one  year  from  the  first  of  January  ne.xt  ensuing. 

Officers  elected  annually. — Sec.  591.  Three  township  trustees,  a  township 
clerk,  one  assessor,  and  or.e  highway  supervisor  for  each  highway  district  in  each  civil 
township  in  the  State,  shall  be  chosen  by  the  qualified  voters  of  each  township  at  the 
general  election  annually,  and  shall  hold  their  offices  for  the  term  of  one  year. 

Additional  justices  and  constables. — Sec.  592.  One  or  two  additional  justices 
of  the  peace  and  one  or  two  additional  constables  may  be  elected  in  each  township  if 
the  trustees  so  direct,  by  posting  up  notices  of  the  same  in  three  of  the  most  public 
places  in  the  township,  at  least  ten  days  before  election. 

Justices  and  constables  considered  county  officers.— Sec.  593.  Justices  of  the 
peace  and  constables  shall  be  considered  as  county  officers  under  the  provisions  of 
this  Title,  but  they  shall  be  voted  for  by  the  voters  of  their  respective  townships. 

Befusing  to  serve. — Sec.  394.  Any  person  elected  to  a  township  office  and 
refusing  to  qualify  and  serve,  shall  forfeit  the  sum  of  five  dollars,  which  may  be 
recovered  by  action  in  the  name  of  the  county  for  the  use  of  the  school  fund  in  the 
county,  but  no  person  shall  be  compelled  to  serve  as  a  township  officer  two  terms 
in  succession. 


336  TOWNSUIP   TRUSTEES. 


CHAPTER    II. 


TOWNSHIP  TRUSTEES. 


I.    THEIR  POWERS  AND  DUTIES  GENERALLY. 

The  provisions  of  the  Code  relating  thereto  are  as  follows: 

To  designate  place  of  holding  elections. — Section  ."Itl .  The  trustees  shall  desig- 
nate the  place  where  elections  will  be  held ;  and  whenever  ;i  change  is  made  from  the 
usual  place  of  holding  elections  in  the  township,  notice  of  such  change  shall  be  given 
by  posting  up  notices  thereof  in  three  public  places  in  the  townships,  ten  days  prior  to 
the  day  on  which  the  election  is  to  be  held. 

Record  to  be  kept. — Sec.  392.  They  shall  cause  a  record  to  be  kept  of  all  their 
proceedings. 

The  trustees:  what  they  are. — Sec.  393.  The  township  trustees  are  the  over- 
seers of  the  poor,  fence  viewers,  and  the  township  board  of  equalization  and 
board  of  health,  and  shall  have  charge  of  all  cemeteries  within  the  limits  of  their 
township,  dedicated  to  public  use,  when  the  same  is  not  controlled  by  other  trustees 
or  incorporated  bodies. 

II.     POWERS  AND   DUTIES,  AS  OVERSEERS  OF  THE 

POOR. 

The  provisions  of  the  Code,  relating  to  their  duties  and  powers 
as  overseers  of  the  poor,  are  as  follows: 

Who  liable  to  maintain. — Section  1330.  The  father,  mother,  and  children  of 
any  poor  person  who  is  unable  to  maintain  himself  by  work,  shall,  jointly  or  severally, 
relieve  or  maintain  such  poor  person  in  such  manner  as  may  be  approved  by  the 
trustees  of  the  township  where  such  poor  person  maybe;  but  these  officers  shall 
have  no  control  unless  the  poor  person  has  applied  for  aid. 

Hay  apply  to  court  for  order. — Sec  1333.  Upon  the  failure  of  such  relatives  so 
to  relieve  or  maintain  a  poor  person  who  has  made  application  for  relief,  the  town- 
ship trustees  may  apply  to  the  circuit  court  of  the  county  where  such  poor  person 
resides,  for  an  order  to  compel  the  same,         *        *        * 

The  court  may  order  execution. — Sec.  1341.  If  any  person  fails  to  render  the 
support  ordered,  on  the  affidavit  of  one   of  the  proper  trustees  showing  the  fact,  the 


POWERS,   DUTIES,    ETC.  337 

court  may  order  execution  for  the  amount  due,  rating  any  support  ordered  in  kind 
as  before  assessed. 

Abandoned  property  seized. — Sec.  134,'].  Whenever  a  father  or  mother  aban- 
dons children,  or  husband  abandons  his  wife,  or  wife  her  husband,  leaving  them 
chargeable,  or  likely  to  become  chargeable,  upon  the  public  for  their  support,  the 
trustees  of  the  township  where  such  abandoned  person  may  be,  upon  application 
being  made  to  them,  may  apply  to  the  clerk  of  the  circuit  court  or  judge  of  any 
county  in  which  the  parties  reside,  or  in  which  any  estate  of  such  absconding  father, 
mother,  husband  or  wife,  may  be,  for  an  order  to  seize  the  r.ame,  and,  upon  due  proof 
of  the  above  facts,  the  clerk  of  the  court  or  judge  may  issue  an  order  authorizing  the 
trustees  or  the  sheriff  of  the  county  to  take  mto  their  possession  the  goods,  chattels, 
things  in  action,  and  lands  of  the  person  absconding. 

Sec,  1.344,  By  virtue  of  such  order,  the  trustees  or  sheriff  may  take  the  property 
wherever  the  same  may  be  found,  and  shall  be  vested  with  all  the  right  and  title  to 
the  personal  property,  and  to  the  rents  of  the  real  property,  which  the  person  abscond- 
ing had  at  the  time  of  his  departure. 

When  affecting  real  estate.— Sec,  1345,  Such  order,  when  affecting  any  real 
estate,  may  be  entered  in  the  incumbrance  book,  and  all  sales,  leases,  and  transfers 
of  any  such  property,  real  and  personal,  made  by  the  person  after  the  issuing  and 
entry  of  the  order  shall  be  void. 

Inventory  of. — Sec.  1346,  The  trustees  or  sheriff  shall  immediately  make  an 
inventory  of  the  property  so  seized  by  them,  and  return  the  same,  together  with  the 
proceedings,  to  the  court,  there  to  be  filed. 

Warning  to  depart. — Sec.  1355.  Persons  coming  from  other  states  or  counties 
who  are,  or  of  whom  it  is  apprehended  that  they  will  become  county  charges,  may 
be  prevented  from  obtaining  a  settlement  in  a  county  by  warning  them  to  depart  from 
the  same  or  any  township  thereof,  an<l  thereafter  they  shall  not  acquire  a  settlement 
except  by  the  requisite  residence  for  one  year  uninterrupted  by  another  warning. 

How  given  and  served.— Sec.  1356.  Such  warning  shall  be  in  writing,  and  may 
be  served  upon  the  order  of  the  trustees  of  the  township,  or  of  the  board  of  super- 
visors, by  any  person  ;  and  such  person  shall  make  a  return  of  his  doings  thereon  to  the 
board  of  supervisors;  and,  if  not  made  by  a  sworn  officer,  it  must  be  verified  by 
affidavit, 

Eemoval  when  settlement  is  in  another  county. — Sec.  1357.  When  a  poor 
person  applying  for  relief  in  one  county  has  a  settlement  in  another,  he  may  be 
removed  to  the  county  of  his  settlement,  if  he  be  able  to  be  removed,  upon  the  order 
of  the  trustees  of  the  township  or  board  of  supervisors  of  the  county  where  he  applied 
for  relief,  and  delivered  to  any  officer  charged  with  the  oversight  of  the  poor  in  the 
county  where  his  settlement  is,  giving  written  notice  of  the  fact  to  the  county  auditor; 
or  the  trustees  of  the  township,  or  board  of  supervisors  of  the  county  where  he 
applied  for  relief,  may,  in  their  discretion,  cause  the  auditor  of  the  county  where  he 
has  a  settlement  to  be  notified  of  his  being  a  county  charge,  and,  thereupon,  it  will 
become  the  duty  of  the  latter  board  to  order  the  removal  of  the  poor  person,  if  he  is 
able  to  be  removed,  and,  if  not  able,  then  to  provide  for  his  relief  and  for  all  expenses 
incurred  in  his  behalf. 

When  trustees  shall  afford  relief.— Sec.  1361.  The  township  trustees  of 
each  township  shall  provide  for  the  relief  of  such  poor  persons  in  their 
respective  townships  as  should  not  in  their  judgment  be  sent  to  the 
county  poor-house.  But  where  a  city  of  the  first  or  second  class  is 
embraced     within     the    limits    of    any  township,   the  board    of   supervisors    may 

22 


338  TOWNSHIP   TKUSTEES. 

appoint  an  overseer  of  the  poor,  who  shall  have  within  said  city  all  the  powers  and 
iluties  conferred  by  this  chapter  on  the  township  trustees.  The  relief  may  be  either 
in  the  form  of  food,  rent,  or  clothing,  fuel  and  lights,  medical  attendance,  or  in 
money;  and  shall  not  exceed  two  dollars  per  week  for  each  person  for  whom  relief  is 
thus  furnished,  exclusive  of  medical  attendance.  When  medical  services  are  ren- 
dered by  order  of  the  trustees  or  overseers  of  the  poor,  no  more  shall  be  charged  or 
paid  therefor  than  is  usually  charged  for  like  services  in  the  neighborhood  where  such 
services  are  rendered. 

Families  of  Iowa  soldiers. — Sec.  1362.  In  no  case  shall  the  widows  or  fam- 
ilies of  Iowa  soldiers,  or  other  persons  in  families  requiring  public  relief,  be  sent  to 
the  county  poor-house,  when  they  can  and  prefer  to  be  relieved  out  of  the  poor- 
house,  to  the  extent  above  provided. 

Expenses  to  be  paid  out  of  county  treasury:  limit. — Sec.  1.363.  All  moneys 
expended  as  contemplated  in  the  two  preceding  sections,  shall  be  paid  out  of  the 
county  treasury,  after  the  proper  account  rendered  thereof  shall  have  been  approved 
by  the  board  of  supervisors  of  the  respective  counties,  and  in  all  cases  the  necessary 
appropriations  therefor  shall  be  made  by  the  respective  counties.  But  the  board  of 
supervisors  may  limit  the  amount  of  relief  thus  to  be  furnished. 

Where  there  is  no  poor-house. — Sec.  1364.  The  trustees  in  each  township  in 
counties  where  there  is  no  poor-house,  have  the  oversight  and  care  of  all  poor  per- 
sons in  their  township,  and  shall  see  that  they  receive  proper  care  until  provided  for 
by  the  board  of  supervisors. 

Application  made  to  trustees. — Sec.  1 365.  The  poor  must  make  application  for 
relief  to  the  trustees  of  the  township  where  they  may  be,  and  if  the  trustees  are 
satisfied  that  the  applicant  is  in  such  a  state  of  want  as  requires  relief  at  the  public 
expense,  they  may  afford  such  relief  as  the  necessities  of  the  person  may  require,  and 
shall  report  the  case  forthwith  to  the  board  of  supervisors,  who  may  continue  or  deny 
relief  as  they  find  cause. 

Sec.  1366.  All  claims  and  bills  for  the  care  and  support  of  the  poor  shall  be 
certified  to  be  correct  by  the  proper  trustees  and  presented  to  the  board  of  super- 
visors, and  if  they  are  satisfied  that  they  are  reasonable  and  proper,  they  are  to  be 
paid  out  of  the  county  treasury.  In  no  case  shall  a  trustee,  or  either  of  the  trustees, 
or  overseer  of  the  poor,  draw  an  order  upon  himself  or  upon  either  of  the  board,  for 
supplies  for  the  poor,  except  such  trustee  or  supervisor  has  a  contract  to  furnish  such 
supplies. 

Allowance  of  in  certain  cases. — Sec.  1367.  The  board  may  in  its  discretion  allow 
and  pay  to  poor  persons  who  may  become  chargeable  as  paupers,  and  who  are  of 
mature  years  and  sound  mind,  and  who  will  probably  be  benefitted  thereby,  such 
sums  or  such  annual  allowance  as  will  not  exceed  the  charge  of  their  maintenance  in 
the  ordinary  mode. 

Appeal. — Sec.  1368.  If  any  poor  person,  on  application  to  the  trustees,  is  refused 
the  required  relief,  he  may  apply  to  the  board  of  supervisors,  who,  on  examination 
into  the  matter,  may  direct  the  trustees  to  afford  relief,  or  they  may  direfct  specific  relief. 

3Iay  bind  the  county,  when.— The  township  trustees,  in 

counties  where  there  are  no  poor-houses,  may  bind  the  county  for 
medical  services  rendered  at  their  instance  during  the  vacation  of 
the  said  board  of  supervisors,  to  poor  sick  persons  in  the  town- 
ship.    24  Iowa,  211. 


DUTY    AS    FENCE    VIEWERS.  339 

Til.     DUTY  AS  FENCE  VIEWERS. 

Provisions  relating  to  fences. — The  Code  provides,  that 
if  any  party  neglect  to  repair  or  re-build  a  partition  fence,  or  a 
})ortion  thereof  which  he  ought  to  maintain,  the  aggrieved  party  may 
complain  to  the  fence  viewers,  who,  after  due  notice  to  each  party, 
are  required  to  examine  the  same;  and,  if  they  determine  the 
fence  is  insufficient,  shall  signify  it  in  writing  to  the  delinquent 
occupant  of  the  land,  and  direct  him  to  repair  or  re  build  the  same 
within  such  time  as  they  shall  judge  reasonable.  Code,  Sec. 
1400. 

The  notice. — Tl-e  notice  to  the  respective  parties  may  be  in 
the  following  form: 

No.  143, 

County,  Iowa,    ) 


Township.  ( 


7'o  S....   B....   and  F  ...   B  ...: 

You  are  hereby  notified,  that  on  the  complaint  of  said  S  B, 
made  to  the  undersigned  trustees  of  said  township,  of  the  neglect 
of  the  said  F  B,  to  re-build  a  partition  fence,  which  he  ought  to 
maintain  between  you,  as  the  owners  of  adjoining  lands,  on  the  west 
line  of  the  nw.  qr.  of  the  se.  qr.  of  sec.  12,  tp.  84  n.,  range  4,  west 
of  the  5th  P.  M.  We  have  appointed  the  ....  day  of  .  .  . . ,  18 . . , 
at  ....  o'clock,  A.  >!.,  of  said  day,  when  we  will  meet  at  the  place 
where  said  fence  is  located,  and  determine  what  shall  be  done  in 
the  premises,  if  anythirg. 

Dated  the  ....  day  of  .  . .  . ,  18  . . 

A....   B....  ) 

Trustees. 


A... 

..   B 

C... 

.   D 

E... 

.    F 

TRUSTEES'  CERTIFICATE. 
No.  144- 

County,  Iowa,  ) 

•  . . . .     1  ownsnip.  ) 

Whereas,  S  B  and  F  B,  are  the  owners  of  certain  adjoining 
and  inclosed  lands  in  said  township,  and  complaint  having  been 
made  to  the  und(;rhignotl  trustees  of  said  township  by  the  said  S 
B,  that  the  said  V  B  has  neglected  to  repair  or  re-build  a  partition 
fence  on  the  line  between  their  said  premises,  to-wit:  [on  the 
west  line  of  the  nw.  «|r.  of  the  so.  (jr.  of  sec.  12,  tp.  84  n,  range  4, 
west  of  oth  P.  M.],  which  he  ought  to  maintain: 

Now,  therefore,   the   undersigned    do  certify,    that  after,  due 


340  TOA^•NSIIIP   TRUSTEES. 

notice  to  said  parties,  we  this  day  met  and  exmiined  said  parti- 
tion fence,  and  heard  the  allegations  of  said  parties  in  reference 
thereto;  and  do  deterniine,  that  said  fence  is  insufficient,  and  that 
it  should  be  re-built  by  said  F  J3;  and  the  said  F  B  is  directed  and 
required  to  have  the  same  re-built,  so  as  to  make  a  good  and  law- 
ful fence,  within  sixty  days.  And  we  further  certify  that  our  fees 
for  services  herein  are  as  follows: 

A. . . .    B. .  . .,  fees  for  one  day's  service,  ^2.00. 
C. .  . .    D. .  .  . ,  fees  for  one  day's  service,  |!''?.0O. 
E . . . .   F . . . . ,  fees  for  one  day's  service,  $2.00. 
And  have  been  paid  by  the  said  S.  B. 
Dated, ,18.. 

A   ...    B.. 

C   ...    D y  Trustees. 

E....    F. 

Failure  to  rep.air  or  re-build. — The  statute  provides,  in 

case  the  fence  is  not  repaired  or  re-built,  as  required  by  the  fence 
viewers,  as  follows: 

Penalty,  if  order  of  fence  viewers  is  not  complied  with. — Sp;c.  1491.  If 
such  fence  be  not  repaired  or  re-built  accordingly,  the  complainant  may  repair  or 
re-build  it,  and  the  same  being  adjudged  sufficient  by  the  fence  viewers,  and  the  value 
thereof  with  their  fees,  being  ascertamed  by  them  and  certified  under  their  hands, 
the  complainant  may  demand  of  the  owner  of  the  land  where  the  fence  was  deficient 
the  sum  so  ascertained,  and,  in  case  of  neglect  to  pay  the  same  for  one  month  after 
demand,  may  recover  it  with  one  per  cent  a  month  interest  by  action. 

CERTIFICATE  OP  THE  SUFFICIENCY   AND  VALUE  OF  FENCE. 
No.  145. 

....   County,  Iowa, 


Township.    '' 

We,  the  undersigned,  two  of  the  trustees  and  fence  viewers 
of  said  township,  do  hereby  certify,  that  upon  the  application  and 
request  of  S  B,  the  owner  of  inclosed  lands  adjoining  the  inclosed 
lands  of  F  B,  in  said  township,  made  to  us  to  determine  the  suffi- 
ciency, and  appraise  the  value  of  a  certain  partition  fence,  alleged 
to  have  been  built  by  the  said  S  B,  [here  describe  the  line,  as 
to-wit:  on  the  west  line  of  the  nw.  qr.  of  se.  qr.  of  sec.  12,  tp.  84 
n,  range  4,  west  of  5th  P  M,]  in  said  township,  on  the  neglect  of  the 
said  F  B,  who  was  required  and  directed  by  us,  (or  the  fence 
viewers  of  said  township,)  on  the  ....  day  of  .  . . ,  18 . . ,  to  repair 
or  re-build  the  same  within  sixty  days  from  that  date,  we  this  day 
proceeded  to  examine  said  fence,  and  do  determine  that  said 
fence  is  a  good,  lawful,  and  sufficient  fence,  and  that  the  same  is 
of  the  value  of  ....  dollars. 


DTJTT   AS   FENCE   VIEWERS.  341 

And  we  further  certify  that  our  fees  for  services  herein,  are  as 
follows: " 

A . . . .  B . ,  services  one  day $2.00 

C . . . .    D . . . . ,  services  one  day 2.00 

Which  have  been  paid  by  the  said  S  B. 
Dated  ....  day  of  . . . . ,  18 . . 

p  ■  ■  "  y.  ■  *  ■ '  l  Trustees. 

In  case  of  controversy . — The  Code  provides  in  case  of 
controversy,  and  other  cases,  as  follows: 

Sispntes:  fence  viewers  to  settle.— Sec.  1492.  When  a  controversy  arises 
between  the  respective  owners  about  the  obligation  to  erect  or  maintain  partition 
fences,  either  party  may  apply  to  the  fence  viewers,  who,  after  due  notice  to  each 
party,  may  inquire  into  the  matter  and  assign  to  each  his  share  thereof,  and  direct  the 
time  within  which  each  shall  erect  or  repair  his  share  in  the  manner  provided   above. 

Failnre  to  comply. — Sec.  149.3.  If  a  party  neglect  to  erect  or  maintain  the  part 
of  fence  assigned  to  him  by  the  fence  viewers,  it  may  be  erected  and  maintained  by 
the  aggrieved  party  in  the  manner  before  provided,  and  he  shall  be  entitled  to  double 
the  value  thereof  to  be  recovered  as  directed  above. 

Bepair. — Sec.  1494.  All  partition  fences  shall  be  kept  in  good  repair  throughout 
the  year,  unless  the  owners  on  both  sides  otherwise  agree. 

Who  req-oired  to  maintain.— Sec  1495.  No  person  not  wishing  his  land  inclosed 
and  not  occupying  nor  using  it  otherwise  than  in  common,  shall  be  compelled  to  con- 
tribute to  erect  or  maintain  any  fence  between  him  and  an  adjacent  owner;  but  when 
he  incloses  or  uses  his  land  otherwise  than  in  common,  he  shall  contribute  to  the 
partition  fences  as  in  this  chapter  provided. 

Inclosed  in  common:  proceedings  where  division  is  sought. — Sec  1496.  When 
lands  owned  in  severalty  have  been  inclosed  in  common  without  a  partition  fence, 
and  one  of  the  owners  is  desirous  to  occupy  his  in  severalty,  and  the  other  refuses  or 
neglects  to  divide  the  line  where  the  fence  should  be  built  or  build  a  sufficient  fence 
on  his  part  of  the  line  when  divided,  the  party  desiring  it  may  have  the  same  divided 
and  assigned  by  the  fence  viewers,  who  may,  in  writing,  assign  a  reasonable  time, 
having  regard  for  the  season  of  the  year  for  making  the  fence,  and  if  either  party 
neglect  to  comply  with  the  decisions  of  the  viewers,  the  other,  after  making  his  own 
part,  may  make  the  other  part,  and  recover  as  directed  above. 

When  it  is  desired  not  to  inclose. — Sec.  1497.  In  the  case  mentioned  in  the 
preceding  section,  when  one  of  the  owners  desires  to  throw  open  any  portion  of  his 
field  not  less  than  twenty  feet  in  width,  and  leave  it  uninclosed  to  be  used  in  common 
by  the  public,  he  shall  first  give  the  other  party  si.v  months'  notice  thereof. 

When  owner  incloses  he  must  pay  for  partition  fence.— Sec.  1498.  When 
land  which  has  lain  uninclosed  is  inclosed,  the  owner  thereof  shall  pay  for  one-half 
of  each  partition  fence  between  his  lands  and  the  adjoining  lands,  the  value  to  be 
ascertained  by  the  fence  viewers,  and  if  he  neglect  for  thirty  days  after  notice  and 
demand  to  pay  the  same,  the  other  party  may  recover  as  before  provided  ;  or  he  may, 
at  his  election,  re-build  and  make  half  of  the  fence,  and  if  lie  neglect  so  to  do  for  two 
months  after  making  such  (-lixtioii  he  shall  be  liable  as  above  provided. 

Division  of  fence  recorded. — Sec.  1499.    When  a  division  of  fence  between  the 


342  TO^r^rs^IP  trustees. 

owners  of  improved  lands  may  have  been  made,  either  by  fence  viewers,  or  by  agree- 
ment in  writing,  recorded  in  the  office  of  the  clerk  of  the  township  where  the  lands 
are,  the  owners  and  their  heirs  and  assigns  shall  be  bound  thereby,  and  shall  support 
them  accordingly,  but  if  any  desire  to  lay  his  lands  in  common  and  not  improve  them 
adjoining  the  fence  divide  as  above,  the  proceedings  shall  be  as  directed  in  the  case 
where  lands  owned  in  severalty  have  been  inclosed  in  common  without  a  partition 
fence. 

Definition  of  "owner"  and  "fence  viewers." — Skc.  1500.  In  the  provisions 
of  this  chapter,  the  term  "owner"  shall  apply  to  the  occupant  or  tenant  when  the 
owner  does  not  reside  in  the  county,  but  these  proceedings  will  not  bind  the  owner 
unless  notified.  The  term  "fence  viewers"  means  the  fence  viewers  of  the  town- 
ship in  which  the  division  line  in  controversy  is,  and  if  that  line  is  between  two  town- 
ships, and  both  parties  live  in  the  same,  then  it  means  the  viewers  of  that  township, 
but  if  the  parties  live  in  different  townships,  one  viewer  at  least  shall  be  taken  from 
that  of  the  party  complained  against. 

Fence  on  another's  land  may  he  removed. — Sec.  1501.  When  a  person  has 
made  a  fence  or  other  improvement  on  an  inclosure,  which,  on  afterward  making 
division  lines  is  found  to  be  on  land  of  another,  and  the  same  has  occurred  through 
mistake,  such  first  person  may  enter  upon  the  land  of  the  other  and  remove  his  fence 
or  other  improvement  and  mater  al  within  six  months  after  such  line  has  been  run, 
upon  his  first  paying,  or  offering  to  pay,  the  other  party  for  any  damage  to  the  soil 
which  may  be  occasioned  thereby,  and  when  the  pnrties  cannot  agree  as  to  the  dam- 
ages the  fence  viewers  may  determine  them  as  in  other  cases. 

Sec.  1502.  But  such  fence  or  other  improvc-ment,  except  substantial  buildings, 
shall  not  be  removed  if  they  were  made  or  taken  from  the  land  on  which  they  lie, 
Ujl^l  the  party  pays  the  owner  the  value  of  the  timber  to  be  ascertained  by  the  fence 
viewers,  nor  shall  a  fence  be  removed  at  a  time  when  the  removal  will  throw  open  or 
expose  the  crop  of  the  other  party,  but  it  shall  be  removed  in  a  reasonable  time  after 
the  crop  is  secured,  although  the  above  si.x  months  have  passed. 

Disputes:  fence  viewers  to  determine. — Sec.  1503.  When  any  question  arises 
between  pnrties,  other  than  those  above  stated,  concerning  their  rights  in  fences,  or 
their  duties  in  relation  to  building  or  supporting  or  removing  them,  such  question 
may  be  determined  by  the  fence  viewers  upon  the  principles  of  this  chapter. 

Lines:  fence  on.— Sec.  1504.  A  person  building  a  fence,  may  lay  the  same  upon 
the  line  between  him  and  the  adjacent  owners,  so  that  the  fence  may  be  partly  on 
one  side  and  partly  on  the  o'her,  and  the  owner  shall  have  the  same  right  to  remove 
it  as  if  it  were  wholly  on  h's  own  land. 

Sec.  1505.  The  foregoing  provisions  concerning  partition  fences  shall  apply  to  a 
fence  standing  wholly  upon  one  side  of  the  division  line. 

Other  proceedings. — Sec.  1506.  The  foregoing  provisions  of  this  chapter  do  not 
bar  any  other  legal  proceedings  for  the  determination  of  the  title  to  land,  or  the  divid- 
ing l.nc  between  contending  owners,  nor  do  they  preclude  agreements  by  the  parties. 

Lawful  fence  defined. — Sec.  1507.  A  fence  made  of  three  rails  of  good  substan- 
tial material  or  three  boards  not  less  than  six  inches  wide,  and  three-quarters  of  an 
inch  thicic,  such  rails  or  boards  to  be  fastened  in  or  to  good  substantial  posts,  not 
more  than  ten  feet  apart,  where  rails  are  used,  and  not  more  than  eight  feet  apart, 
where  boards  are  used,  wire  either  wholly  or  in  part,  substantially  built  .•^nd  kepi  in 
good  rtpair,  or  any  other  kind  of  fence,  which  in  the  opinion  of  the  fence  viewers 
shall  be  equivalent  thereto,  shall  be  declared  a  lawful  fence;  provided,  \ha.\.  the  lowest 
or  bottom  rail  or  board  shall  not  be  more  than  twenty  nor  less  than  si.\teen  inches 


DUTY    AS    FENCE    VIEWERS.  343 

from  the  ground,  and  that  such  fence  shall  be  fifty-four  inches  in  height ;  provided 
further,  that  all  partition  fences  may  be  made  tight  at  the  expense  of  the  party  desir- 
ing it,  and  such  party  may  take  from  such  fence  the  same  material  by  him  added 
thereto  whenever  he  may  elect;  and,  provided  further,  that  when  the  owner  or  occu- 
pants of  adjoining  land  use  the  same  for  the  purpose  of  pasturing  swine  or  sheep, 
each  of  said  owners  or  occupants  shall  keep  their  respective  share  of  the  partition 
fence  sufficiently  tight  to  restram  such  swine  or  sheep. 

"Where  stock  is  restrained.— Sec.  1508.  That  all  the  provisions  of  this  chapter 
in  relation  to  partition  fences,  shall  be  alike  applicable  to  counties  or  townships  hav- 
ing restrained,  or  which  may  restrain,  stock  from  running  at  large. 

CERTIFICATE  IN  PEOCEEDLNGS  UNDER  SEC.  1492. 
No.   146. 

County,  Iowa,      \ 

Township.     [ 

Whekeas,  a  controversy  exists  between  S  B,  and  IJ'  B,  owners 
of  certain  adjoining  lands  in  said  township,  in  relation  to  the 
obligation  of  the  said  F  B,  to  erect  and  maintain  a  portion  of  a 
partition  fence  between  said  lands,  on  the  [here  describe  the  line 
as  to-wit:  west  line  of  the  nw.  qr.  of  se.  qr.  of  sec.  12,  tp.  84,  n.  range 
4,  west  of  5th  P.  M  ,]  in  said  township;  and  whereas  the  said  S  B, 
has  applied  to  us  to  determine  said  controversy;  and  due  notice 
of  the  meeting  of  the  undersigned  to  determine  the  controversy, 
having  been  given  to  said  parties: 

Now  therefore,  we,  the  undersigned,  trustees  of  said  township, 
do  hereby  certify,  that  we  this  day  met  to  determine  said  contro- 
versy, and  proceeded  to  examine  said  premises  and  hear  the  alle- 
gations of  said  parties;  and  we  do  determine  that  said  partition 
fence  should  be  maintained  by  said  parties  in  equal  shares,  and 
that  the  said  S  B,  shall  erect  and  maintain  his  share  on  the  north 
half  of  said  line;  and  the  said  F  B,  shall  erect  and  maintain  his 
share  thereof  on  the  soutn  half  of  said  line,  and  that  said  parti- 
tion fences  shall  be  built  (or  re-built  or  repaired,)  good  and  law- 
ful fences,  within  sixty  days  from  this  date,  by  the  parties  respect- 
ively as  aforesaid. 

We  further  certify,  that  our  fees  herein  are  as  follows: 

A . . . .  B . . . . ,  one  day's  service $2.00 

C . .  . .   D .  .  , . ,  one  day's  service   2.00 

E .  .  . .  F .  .  . . ,  one  day's  service 2.00 

All  of  which  have  been  paid  by  the  said  S  B. 
Dated  this  ....  day  of  . . . . ,  18 . . 

A....   B.... 

C   ...    1 ) ,    ;-  TrtisU^cs. 

E....   F 

The  foregoing  forms  will  furnisii  the  trustees  a  suflicient  guide 
as  fence  viewers,  under  the    statutes  relating  to  partition  fences. 


344  TOWXSHIP   TRUSTEES. 

Tlie  fence  viewers,  a  local  forum.— It  is  the  policy  of  the 

law,  to  have  all  controversies  relating  to  fences  determined  by 
the  fence  viewers,  as  a  local  forum.  In  fact  there  is  no  other 
remedy  in  such  cases  but  through  the  fence  viewers.  28  Iowa, 
509;  and  22  Iowa,  572. 

Their  acts  sbould  receive  indulgent  consideration. — 

The  statute  does  not  in  terms  require  a  written  notice  of  the 
meeting  of  the  fence  viewers,  although  such  notice  should  prop- 
erly be  given  in  writing,  and  proceed  from  the  fence  viewers;  but 
where  a  party  appears  upon  notice  verbally  given  by  the  other 
party,  and  without  objection,  it  is  a  sufficient  compliance  with 
the  statute.     2S  Iowa,  509;  22  Iowa,  572;  31  Iowa,  254. 

A  party  cannot  evade  the  statutes. — One  party  cannot 

evade  the  provisions  of  the  law,  by  erecting  his  fence  a  few  feet 
from  the  line,  after  a  decision  of  the  fence  viewers.  28  Iowa, 
509;  22  Iowa,  572;  31  Iowa,  254. 

Recent  exposition  of  the  statute.— The  Supreme  Court 
has  recently  held,  that  although  the  decision  of  the  fence  viewers 
is  conclusive  upon  matters  which  are  within  their  jurisdiction, 
still,  in  order  to  confer  jurisdiction,  the  fence  respecting  which 
they  decide,  must  in  fact  be  a  partition  fence.  And  that  "  they 
cannot  conclusively  bind  a  party  by  determining  that  to  be  a  par- 
tition fence  which  in  fact  is  not."  Bills  v.  Belknap,  May  Term, 
1874,  (not  published.) 

The  proceeding  in  this  case  was  under  Sec.  1492.  There  was 
a  controversy  about  the  obligation  of  the  defendant  to  maintain 
a  portion  of  a  partition  fence. 

It  is  difficult  to  comprehend  the  meaning  of  that  section,  taken 
in  connection  with  the  other  sections  relating  to  fences  and  fence 
viewers  unless  the  fence  viewers  have  jurisdiction  to  determine  a 
controversy  in  such  cases;  although  this  may  involve  the  question 
whether  the  adjoining  lands  are  inclosed  in  such  a  manner  as  to 
impose  on  the  owner  the  obligation  to  erect  and  maintain  a  portion 
of  a  partition  fence.  The  court  say  in  the  case  last  referred  to,  that 
the  fence  viewers  "  cannot  conclude  a  party,  using  his  land  in  com- 
mon, and  not  wishing  it  inclosed,  by  a  determination  that  he  shall 
erect  a  partition  fence."     But  is  not  this  very  question  whether 


POWEKS   AND    DUTIES.  345 

the  land  is  "in  common,"  or  "inclosed,"  a  fact  which  may  well 
be  left  to  this  local forum^  to  determine? 

IV.    POWERS  AND  DUTIES  AS  A  BOARD  OF  EQUAL- 
•       IZATION. 

The  provisions  of  the  statute  in  reference  thereto  are  as  fol- 
lows: 

"Who  composes. — Section  829.  The  township  trustees  shall  constitute  a  board 
of  equalization  for  their  respective  townships,  and  have  power  to  equalize  the  assess- 
ments of  all  tax-payers  within  the  same,  except  in  such  cities  and  incorporated  towns 
as  elect  a  township  assessor,  in  which  case  the  city  council  shall  be  the  board  of 
equalization,  and  shall  perform  such  duties  in  substantially  the  same  manner,  as  is 
required  of  a  township  board  of  equilization,  by  increasing  or  diminishing  the  valu- 
ation of  any  piece  of  property,  or  the  jentire  assessment  of  any  tax-payer,  as  they 
may  deem  necessary  for  an  equitable  distribution  of  the  burden  of  taxation  upon  all 
the  property  of  the  township;  provided,  that  such  boards  shall  keep  a  record  of  their 
proceedings. 

Time  of  meeting.— Sec.  830.  Said  board  shall  meet  for  that  purpose  at  the 
office  of  the  township  or  city  clerk,  on  the  first  Monday  in  April  of  each  vear,  and 
continue  from  day  to  day  until  completed;  and  at  such  meeting  they  may  also  add 
to  the  assessment  as  returned  by  the  assessor,  any  taxable  property  in  the  township, 
city,  or  incorporated  town,  not  included  therein,  placing  the  same  to  the  name  of  the 
owner,  if  known,  and  assessing  the  value  thereof. 

May  correct  assessment:  appeals. — Sec.  S.^l.  Any  person  who  may  feel 
aggrieved  at  anything  in  the  assessment  of  his  property,  may  appear  before  said 
board  of  equalization  in  person,  or  by  agent,  at  the  time  and  place  mentioned  in  the 
preceding  section,  and  have  the  same  corrected  in  such  manner  as  to  said  board  may 
seem  just  and  equitable,  and  the  assessors  shall  meet  with  said  board  and  correct 
the  assessment  books  as  they  may  direct.  Appeals  may  be  taken  from  all  boards  of 
equalization  to  the  circuit  court  of  the  county  where  the  assessment  is  made. 

Remedy  for  unequal  assessments. — It  will  be  seen  from 

these  provisions  of  the  statute  that  it  is  the  privilege  of  parties 
aggrieved  by  assessments,  to  apply  to  this  board  for  relief.  In 
fact,  the  only  remedy  for  parties  in  such  cases,  is  through  this 
board  and  by  appeals  from  its  decisions. 

The    county  board:    no  jxiwer  to  act. — The  practice 

has  l)een  quite  connnon,  for  parties  conceiving  themselves 
aggrieved  by  unequal  assessments,  to  neglect  application  to  this 
board,  and  apply  to  the  board  of  supervisors  of  the  county  for  a 
correction  thereof.  This  course  is  not  authorized  by  law;  the 
county  board  of  equalization  have  no  authority  to  act  in  such 
cases. 


346  TOWNSHIP   TRUSTEES. 

The  county  board  should  refuse  to  act  in  such  cases,  for  beside 
the  want  of  authority,  it  involves  much  trouble  and  confusion  in 
the  proceedings  for  the  collection  of  taxes;  especially  after  the 
action  of  the  county  board  of  equalization,  requinnl  to  be  had  at 
their  June  meeting  in  each  year,  and  after  the  county  auditor  has 
transmitted  to  the  Auditor  of  State  an  abstract  thereof,  which  he 
is  required  to  do  before  the  third  Monday  of  Juno  in  each 
year. 

For,  thereupon,  the  State  board  of  equalizati(Hi,  at  their  <hi\y 
meeting,  equalize  the  assessments  among  the  several  counties  of 
the  State,  and  the  several  county  auditors  are  required  to  correct 
the  assessments  of  their  counties  in  accordance  with  the  action  of 
the  State  board,  and  transcribe  the  corrected  assessments  into  a 
suitable  book;  after  which  the  county  board  should  levy  thereon 
the  requisite  taxes,  which  they  are  required  to  do  at  their  Sep- 
tember meeting,  and  thereupon  the  county  auditor  is  required  to 
deliver  these  books  to  the  county  treasurer  for  collection  of  the 
taxes,  on  or  before  the  first  day  of  November  in  each  year,  and 
at  the  same  time  he  is  required  to  send  the  Auditor  of  State  a 
certified  statement  showing  the  aggregate  valuation  of  the  several 
kinds  of  property,  and  the  aggregate  amount  of  each  sepaiate 
tax,  as  shown  by  the  tax  book,  when  each  county  is  then  charged 
with  the  amount  of  tax  levied  for  State  purposes. 

After  all,  or  any,  of  these  various  proceedings  for  the  collection 
of  taxes,  it  will  cause  trouble  and  extra  labor  to  change  the 
assessments  of  individuals  who  may  be  aggrieved,  and  which 
must  be  apparent  to  any  one  who  comprehends  the  revenue  sys- 
tem of  tile  State,  in  all  its  relations  and  complications. 

V.     POWERS  AND  DUTIES  AS  A  BOARD  OF  HEALTH. 

The  provisions  of  the  Code  in  relation  thereto  are  as  follows: 

Board  of  health. — Section  415.  The  township  trustees  shall  have  power  to  make 
whatever  regulations  they  deem  necessary  for  the  protection  of  the  public  health, 
and  respecting  nuisances,  sources  of  filth  and  causes  of  sickness  within  their  respec- 
tive townships;  provided,  that  their  jurisdiction  as  such  board  shall  not  extend  to  any 
city  or  incorporated  town  situated  therein. 

Regulations  published.— Sec  410.  Notice  shall  be  given  of  all  regulations 
made,  by  publishing  the  same  in  a  newspaper  published  in  the  township,  or,  where 
there  is  no  newspaper,  by  posting  in  five  public  places  therein. 


POWERS    AND    DUTIES.  347 

Power:  how  executed. — Sec.  417.  The  trustees  may  order  the  owner  or  occu- 
pant, at  his  own  e.xpense,  to  remove  any  nuisance,  source  of  fihh,  or  cause  of  sick- 
ness found  on  private  property  within  such  time  as  they  deem  reasonable,  and  if  such 
person  neglects  to  do  so  he  shall  forfeit  a  sum  of  not  exceeding  twenty-five  dollars 
for  every  day  during  which  he  knowingly  permits  such  nuisance  or  cause  of  sickness 
to  remain  after  the  time  prescribed  for  the  removal  thereof.  The  order  shall  be  in 
writing,  and  served  by  any  constable  of  the  town  in  the  usual  way  of  serving  notices 
in  civil  suits.  If  the  owner  or  occupant  fails  to  comply  with  such  order,  the  trustees 
may  cause  the  nuisance,  source  of  filth,  or  cause  of  sickness  to  be  removed,  and  all 
expenses  incurred  thereby  shall  be  paid  by  such  owner  or  occupant. 

Use  means  necessary. — Sec.  418.  The  trustees  shall  have  power  to  employ  all 
such  persons  as  shall  be  necessary  to  carry  into  effect  the  regulations  adopted  and 
published  according  to  the  powers  vested  in  the  trustees  and  to  fix  their  compensa- 
tion ;  to  employ  physicians  in  case  of  poverty,  and  to  take  such  general  precautions 
and  actions  as  they  may  deem  necessary  for  the  public  health. 

Violation:  punishment.— Sec.  419.  Any  person  who  shall  willfully  violate  any 
of  the  regulations  so  made  and  published  by  the  trustees,  shall  bo  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  subject  to  a  fine  or  imprisonment,  such 
fine  not  to  exceed  one  hundred  dollars,  and  such  imprisonment,  not  to  exceed  thirty 
days. 

Expenses:  how  paid. — Sec.  420.  All  expenses,  now  or  hereafter  incurred  by  the 
trustees  of  a  township  in  the  exercise  of  the  powers  heretofore  or  herein  conferred, 
shall  be  borne  by  the  township.  The  trustees  shall  certify  the  amount  required  to 
pay  such  expenses  to  the  board  of  supervisors  of  the  county,  and  that  board  shall,  at 
the  time  it  levies  tlie  general  taxes,  and  in  addition  thereto,  levy  on  the  property  of 
such  township  a  sufficient  tax  to  pay  the  amount  so  certified  by  the  trustees.  The 
tax  so  levied  shall  be  collected  by  the  county  treasurer  with  the  other  taxes,  and  be 
by  him  paid  over  to  the  township  clerk. 

The  reguhltions. — The  regulations  provided  for,  should  be 
prepared  in  the  form  of  rules  or  ordinances,  and  cover  all  the 
ground  deemed  requisite  and  necessary,  for  carrying  out  the 
object  of  the  board;  and  on  their  adoption  by  the  board,  should 
be  entered  with  all  other  actions  of  the  board,  on  the  records  to 
be  kept  by  the  tovpnship  clerk,  and  also  published  or  posted  as 
required  by  law. 

Certificate  of  expenses. — The  certificate  of  the  amount 
required  to  pay  the  expenses  of  the  board,  may  be  in  the  follow- 
ing form: 

CERTIFICATE  OF  TRUSTEES. 
No.  I<t7'. 


County, 

'        '  SB. 


....  Township.   J 

To  the  Board  of  Supervisors^  of  ... .  county,  Iowa: 

We,  the  undersigned,  trustees  of  said  township,  hereby  certify 
to  the  board  of  supervisors  of  said  county,  that  we,  as  a  board  of 


348  TOWNSHIP   TRUSTEES. 

liealth  of  said  township,  have  made  regulations  for  the  protection 
of  the  public  health  of  said  township,  and  that  the  expenses  now 
and  hereafter  to  be  incurred  in  the  exercise  of  our  powers  as  such 
l)oard  of  health,  is  $. . . . ;  and  we  request  you  at  the  time  of  the 
levy  of  the  general  taxes,  and  in  addition  thereto,  to  levy  on  the 
property  of  said  township,  a  sufficient  amount  to  pay  said  sum. 
Dated  ....  day  of  . . . . ,  18 . . 

A....  B  ... 

C D ,   y  Trustees. 

E....  F 


VI.     POWER  AND   DUTY  TO  FILL  VACANCIES. 

The  statutes  in  relation  thereto  provide: 

In  ofB.ce  of  justice. — Section  794.  Whenever  a  vacancy  occurs  in  the  office  of  a 
justice  of  the  peace  or  a  constable  more  than  thirty  days  prior  to  any  general  elec- 
tion, the  county  auditor  shall  immediately  notify  the  clerk  of  the  township  in  which 
the  vacancy  exists,  and  the  township  clerk,  wiihin  five  days  after  receiving  such 
notice,  shall  notify  each  of  the  trustees  of  his  township  in  writing,  fi.xingthe  time  and 
place  that  they  shall  meet  for  the  purpose  of  filling  such  vacancy  by  appointment. 
Such  notice  may  be  served  by  any  constable  of  the  township,  and  shall  be  served  at 
least  five  days  prior  to  such  meeting. 

Trustees  to  appoint:  qualification. — Sec.  795.  The  trustees  shall  meet  in 
accordance  with  such  notice,  and  fill  such  vacancy,  and  in  five  days  after  such 
appointment  has  been  made,  the  township  clerk  shall  record  it  in  the  township  record 
book,  and  shall  cause  a  notice  to  be  served  upon  the  person  so  appointed,  informing 
him  of  his  appointment,  by  any  constable  in  the  township  in  the  manner  prescribed 
by  law  for  the  service  of  notices,  and  any  person  so  appointed  and  notified,  shall 
qualify  within  ten  days  after  such  notice  has  been  served  upon  him.  The  auditor 
may  approve  of  the  bond  of  a  justice  of  the  peace  and  constable  so  appointed,  by 
the  recommendation  of  the  sufficiency  of  the  sureties  upon  such  bond,  signed  by  any 
member  of  the  board  of  supervisors. 

VII.     POWERS    AND    DUTIES  RELATING    TO    HIGH- 
WAYS. 

The  Code  provides,  relating  thereto,  as  follows: 

Time  of  meeting. — Section  flfi9.  The  township  trustees  of  each  township  shall 
meet  on  tlie  first  Monday  in  April,  or  as  soon  thereafter  as  the  assessment  book  is 
received  by  the  township  clerk,  and  on  the  first  Monday  in  October  in  each  year. 
At  the  April  meeting  said  trustees  shall  determine: 

Power  and  duty  of  trustees. — 1.  Upon  the  amount  of  property  tax  to  be  levied 
for  highways,  bridges,  guide-boards,  plows,  scrapers,  tools,  and  machinery  adapted 
to  the  construction  and  repair  of  highways;  and  for  the  payment  of  any  indebtedness 
previously  incurred  for  highway  purposes,  and  levy  the  same,  which  shall  not  be  less 
than  one  nor  more  than  five  mills  on  the  dollar  on  the  amount  of  the  township  assess- 
ment for  that  year; 


POWERS    AND    DUTIES.  349 

2.  Whether  any  portion  of  said  tax  shall  be  paid  in  labor,  and,  if  so,  what  portion 
may  be  so  paid; 

3.  Upon  the  amount  that  will  be  allowed  for  a  day's  labor  done  by  a  man,  and  by 
a  man  and  team,  on  the  highway; 

4.  At  the  October  meeting,  said  trustees  shall  divide  their  respective  townships 
into  such  number  of  highway  districts  as  they  may  deem  necessary  for  the  public 
good,  and,  at  said  meeting,  they  shall  settle  with  the  township  clerk  and  supervisors 
of  highways. 

General  township  fund:  clerk  to  give  bond:  custody  of  implements.— Sec. 
970.  The  trustees  shall  set  apart  such  portion  of  the  ta.\  specified  in  the  preceding 
section  of  this  chapter,  as  they  may  deem  necessar>-  for  the  purpose  of  purchasin<r 
the  tools  and  machinery  and  paying  for  the  guide-boards  mentioned  in  said  section, 
and  the  same  shall  constitute  a  general  township  fund;  and  such  trustees  shall 
require  the  township  clerk  to  give  bond  in  such  sum  as  they  deem  proper,  conditioned 
as  the  bonds  of  county  officers,  which  bond,  and  the  sureties  thereon,  shall  be 
approved  by  said  trustees.  Said  clerk  shall  take  charge  of  and  properly  preserve 
and  keep  in  repair  such  tools,  implements,  and  machinery  as  may  be  purchased  with 
said  general  township  fund,  and  shall  have  authority  to  determine  at  what  time  the 
supervisors  of  the  several  districts  may  have  the  use  and  custody  of  the  same  or  any 
part  thereof,  and  shall  be  responsible  for  the  safe  keeping  of  the  same,  when  not  in 
the  custody  of  some  one  of  the  supervisors  for  use  in  working  the  highways  in  his 
district,  and  shall  receive  such  compensation  as  the  trustees  shall  provide  to  be  paid 
out  of  such  fund. 

Control  of  fund. — Sec  971.  The  trustees  shall  order  and  direct  the  expenditure 
of  the  general  township  fund. 

VIII.     POWERS  AND  DUTIES  RELATING  TO  DRAIN- 
AGE. 

The  Code,  in  relation  thereto,  provides: 

Application  for,  by  petition.— Section  1217.  Any  person  owning  any  swamp, 
marsh,  or  wet  land,  desiring  to  drain  the  same  by  cutting  a  ditch  through  the  land  of 
others,  and  who  is  unable  to  agree  upon  the  terms  thereof  with  such  other  persons, 
may  make  ai5plication  in  writing  to  the  township  trustees  of  the  township  where  such 
swamp  or  marsh  land  is  situated,  with  a  description  of  such  land,  the  commencement 
and  termini  of  the  proposed  ditch,  and  a  description  of  the  land  belonging  to  others, 
with  their  names,  through  which  it  will  pass.  Such  petition  shall  be  filed  by  the  town- 
ship clerk. 

Meeting:  notice  given.— Sec.  1218.  When  the  application  is  filed  the  clerk  shall 
notify  ilii'  trustees,  who  shall  immediately  determine  upon  the  time  and  place  they 
will  meet  to  consider  the  application,  and  shall  cause  the  applicant  and  all  persons 
owning  land  through  which  said  ditch  is  to  pass,  who  are  residents  of  the  county,  to 
be  notified  of  the  lime  and  place  of  said  meeting,  which  notice  shall  be  served  ten 
days  picvious  to  such  day  in  the  same  manner  as  original  notices,  and  if  any  of  such 
owners  of  land  are  non-residents  of  the  county,  said  notice  shall  be  served  on  them 
by  posting  up  copies  thereof  in  three  public  places  in  the  township.  Satisfactory  proof 
by  affidavit  of  such  posting,  and  places  where  posted,  shall  be  furnished  said  trustees 
and  filed  with  the  clerk. 

Hearing:  adjournment  of. — Sec.  1219.     Upon  the  day  fixed  for  the  hearing,  the 


350  TOWNSHIP   TRUSTEES. 

trustees,  if  satisfied  that  the  requirements  of  the  preceding  section  have  Ijecn  com- 
plied with,  may  proceed  to  hear  and  determine  tlie  matter  of  the  appHcation,  or  they 
may  adjourn  the  same  to  a  future  day,  and,  if  necessary,  may  cause  another  notice 
to  be  served  in  the  manner  above  required.  But  such  adjournment  sliall  not  lie  for 
a  longer  period  than  twenty  days. 

Trustees  determine  course,  width,  and  depth  of  ditch:  record  of  made. — Sec. 
1220.  If  the  trustees  are  satisfied  from  a  personal  examination  of  the  premises,  or 
from  evidence  of  witnesses,  that  such  swamp  or  marsh  lands  are  a  source  of  disease, 
that  the  public  health  will  be  proinoted  by  draining  the  same,  that  such  ditch  is  nec- 
essary for  the  proper  cultivation  of  such  lands,  that  the  permanent  value  thereof  will 
be  increased  thereby,  and  that  it  is  necessary,  in  order  to  drain  said  lands,  that  such 
ditch  should  pass  through  the  lands  of  others,  they  shall  determine  the  direction, 
depth,  and  width  of  such  ditch,  as  near  as  may  be,  and,  if  necessary,  may  employ 
the  county  surveyor  to  assist  them,  and  after  such  examination,  or  hearing  such  evi- 
dence, said  trustees  may  order  or  refuse  the  construction  of  said  ditch.  All  the  find- 
ings and  doings  of  the  trustees  shall  be  reduced  to  writing,  and  entered  of  record  by 
the  clerk. 

Costs:  by  whom  paid:  bond  required. — Sec.  1221.  The  applicant  shall  pay  all 
costs  of  the  proceedings  before  the  trustees,  and  they  may  require,  before  fi.\ing  the 
day  of  meeting  as  above  provided,  such  applicant  to  give  bond  with  sureties  to  be 
approved  by  the  township  clerk,  conditioned  to  pay  all  such  costs  and  expenses. 

Trustees  to  assess  damages  to  land  owners. — Sec.  1222.  If  the  trustees  are  sat- 
isfied the  ditch  will  damage  the  land  of  any  person,  other  than  the  applicant  for  the 
ditch,  through  which  it  has  been  located,  they  shall  assess  the  amount  to  be  paid  the 
owner,  and  after  payment,  or  tender  of  the  same,  to  the  person  entitled  thereto 
within  thirty  days  after  the  same  is  assessed  or  ascertained  on  appeal  in  the  circuit 
court,  or,  in  case  no  damages  are  assessed,  the  applicant  may  enter  upon  the  land 
through  which  the  ditch  passes,  with  the  necessary  implements  to  accomplish  the 
work. 

Appeal;  how  taken. — Sec.  1223.  The  applicant,  or  any  person  through  whose 
land  the  ditch  is  located,  may  appeal  from  so  much  only  of  the  order  or  action  of  the 
trustees  as  relates  to  the  assessment  of  damages  to  the  circuit  court,  in  the  same 
manner  as  to  bond,  the  conditions  thereof  notice  of  appeal,  and  the  time  within  which 
it  is  to  be  taken,  as  is  provided  by  law  in  cases  of  appeals  from  the  assessment  of 
damages  on  the  location  of  highways.  The  township  clerk  shall  approve  the  bond 
and  make  out  a  transcript  of  the  proceedings  before  the  trustees  within  ten  days  after 
the  bond  is  filed  and  approved,  and  file  the  same  with  the  clerk. 

Trial  of:  in  Circuit  Court. — Sec.  1224.  On  the  trial  of  such  appeal,  the  person 
claiming  damages  shall  be  plaintiff  and  the  applicant  defendant,  and  if  the  appeal  is 
taken  bv  any  person  other  than  the  applicant,  judgment  shall  be  rendered  by  the 
court  for  the  amount  found  due  such  person  as  damages,  which  may  be  enforced  es 
are  other  judgments;  and  if  the  appeal  is  taken  by  the  applicant,  no  judgment  shall 
be  rendered  for  the  amount  found  due  any  person  as  damages,  but  the  amount 
thereof  shall  be  certified  to  the  township  clerk,  and  the  same  shall  thereafter  be 
regarded  as  if  the  same  had  been  assessed  by  the  trustees  at  the  time  so  certified.  The 
court  shall  make  such  disposition  of  the  costs,  as  is  required  in  similar  cases  in  appeals 
from  the  assessment  of  damages  on  the  location  of  highways.  But  the  payment  or 
acceptance  of  the  damages  assessed  by  the  trustees  shall  bar  the  right  to  appeal. 

Drain  bridged. — Sec.  1225.  If  said  drain  shall  cross  a  highway,  it  shall  be 
bridged  or  covered  at  the  expense  of  the  applicant. 

Ditch  repaired. — Sec.  1226.     If  the  ditch  becomes  out  of  repair,  the  applicant 


POWERS    AXD    DUTIES.  351 

or  any  one  interested  therein,  may  make  application  in  writing  to  tlie  township  trus- 
tees for  leave  to  repair  the  same,  whereupon  such  trustees  shall  make  such  orders  iu 
relation  thereto  as  they  deem  proper,  and  may  empower  such  applicant  or  other 
interested  person  to  enter  upon  the  land  of  another  for  the  purpose  of  repairing  such 
ditch. 

Notice  to  be  served. — The  notice  required  to  be  served  on 
the  applicant  and  the  owners  of  land  through  which  the  ditch  is 
to  pass,  may  be  in  the  following  form: 

FORM  OF  NOTICE  OF  DRAIN. 
No.  148. 

COITXTY,  loWA,  ) 

Township.    ) 

To  C  D,E  F,  and  G  H. 

Whereas,  said  C  D,  has  made  application  in  writing  to  the 
trustees  of  said  township  and  filed  the  same  with  the  clerk  of 
said  township,  stating  that  he  desires  to  drain  the  following 
described  lands  situate  in  said  township  to-wit:  [here  describe 
the  lands,]  by  cuttkig  a  ditch  through  the  lands  of  you  the  said 
E  F  and  G  H,  and  that  he  is  unable  to  agree  with  you  upon  the 
terms  thereof. 

Now,  therefore,  you  are  hereby  notified  that  the  said  trustees 
will  meet  at  the  office  of  the  said  township  clerk  in  . . .  . ,  on  the 
....  day  of  .  .  .  . ,  18 . . ,  at  .  .  o'clock,  .  .  M.,  of  said  day  to  con- 
sider said  application,  and  the  terms  on  which  said  ditch  may  be 
made. 

By  order  of  the  Trustees. 

Dated  this  ....  day  of  . . . . ,  18 . . 

A B....,  Clerk. 


FINDING  AND  DECISION-DRAIN. 
No.  149. 

....  County,  Iowa,  ) 

....  Township.  \ 

Whereas,  C  D  made  application  to  the  undersigned,  trustees 
of  said  township,  in  writing,  and  filed  the  same  with  the  township 
clerk  of  said  township  on  the  ....  day  of  . .  .  .,  18. . ,  in  which  he 
states  he  is  the  owner  of  the  following  described  lands  situate  in 
said  township,  to-wit:  [here  describe  the  lands,]  and  that  he 
desires  to  drain  the  same  by  cutting  a  ditch  through  the  center 
line  north  and  south  of  the  lands  owned  by  E  F,  described  as  fol- 
lows: [here  describe  the  lands,]  and  also  through  tiie  center  line 
north  and  south  of  the  lands  owned  l)y  G  11,  described  as  follows: 
[here  describe  the  lands,]  and  afterward  the  undersigned  caused 
due  notice  to  be  given  to  said  ap]»licant  and  the  said  owners  of 
said  lands  of  the  time  and  place  of  meeting  of  the  undersigned, 
to  consider  said  application,  and  determine   the  conditions  upon 


352  TOWNSHIP   TRUSTEES. 

which  said  ditch  might  be  dug;  and  having  met  for  this  purpose 
at  the  time  and  place  designated  in  said  notice,  to-wit:  the  .... 
day  of  . . . . ,  18 .  . ,  at  the  office  of  said  clerk  in  .  .  .  .  ;  and  having 
satisfied  ourselves  from  a  personal  examination  of  said  premises, 
and  the  testimony  of  witnesses,  that  said  lands  of  the  applicant 
are  marsh  lands,  and  a  source  of  disease;  that  the  public  health 
will  be  promoted  by  draining  the  same;  that  such  ditch  is  neces- 
sary for  the  proper  cultivation  of  said  lands;  that  the  permanent 
value  thereof  will  be  increased  thereby,  and  that  it  is  necessarv 
in  order  to  drain  said  lands  that  said  ditch  should  pass  through 
the  said  lands  of  the  said  C  D  and  E  F,  as  aforesaid,  and  that  the 
location  and  direction  thereof  should  be  as  aforesaid,  and  that 
said  ditch  should  be  of  the  depth  of  four  feet,  and  of  the  width 
of  three  feet  at  the  top,  and  eighteen  inches  at  the  liottom;  and 
having  inquired  into  the  damages  said  C  D  and  E  F  will  sustain 
bv  reason  of  the  location  of  said  ditch  across  their  said  lands  as 
aforesaid,  do  find  and  determine  that  the  said  C  I)  will  sustain 
damages  thereV)y  in  the  sum  of  ....  dollars,  and  the  said  E  F 
will  sustain  damages  by  reason  thereof  in  the  sum  of  ....  dollars. 

Wherefore,  we,  the  undersigned  do  determine  and  decide  that 
said  ditch  may  be  dug  across  the  said  lands  of  the  said  C  D  and 
E  F,  as  aforesaid,  on  the  payment  of  the  damages  aforesaid  to 
them  as  provided  by  law. 

"We  further  certify  that  the  costs  and  expenses  herein  are  as 
follows: 

FEES. 

A  B,  2  day's  services $4.00 

•T  K,  2  day's  services 4.00 

L  M,  2  day's  services 4.00 

A  B,  Clerk,  filing  application .50 

A  B,  Clerk,  1  day's  service  recording  2.00 

O  P,  Const.,  serving  notices 2.50 

Total S17.00 

Dated  this  ....  day  of  . . .  . ,  18 . . . 

A....  B... 

.1 K ,  y  Trustees. 

L....  M... 


IX.     POWERS    AND    DUTIES    RELATING    TO    TRES- 
PASSING  ANIMALS. 

The  provisions  of  the  Code  are  as  follows: 

Lien  for  damage. — Section  1-451.  The  owners,  or  person  in  actual  possession, 
of  any  cultivated  lands  in  this  state,  shall  have  a  lien  from  the  time  of  distraint  on  all 
and  any  stock  that  shall  trespass  on  such  lands. 

Payment  of. — Sec.  1452.     The  owner  of  any  stock  trespassing  on   the  improved 


POWEES   AND    DUTIES.  353 

lands  of  another,  shall  pay  to  the  owner   or  person  in  actual  possession  of  the  lands 
so  damaged,  the  actual  amount  of  damages  so  sustained. 

Person  in  possession  may  restrain. — Sec.  1453.  The  person  who  is  in  posst^s- 
sion  of  the  lands  so  trespassed  upon,  may  distrain  any  trespassing  stock  and  retain 
the  same  in  some  safe  place  at  the  expense  of  the  owner  thereof  until  said  damages 
are  paid,  as  provided  in  the  three  following  sections. 

Township  trustees  notified  to  assess  damages:  sale  of  stock.— Sec.  1454.  Within 
twenty-four  hours  after  the  stock  has  been  distrained,  Sunday  not  being  included, 
the  party  so  injured,  or  his  agent,  shall  notify  the  owner  of  said  stock,  when  known, 
and  if  said  owner  shall  fail  to  satisfy  the  owner  of,  or  occupant  cultivating  said  land, 
he  shall,  within  twenty-four  hours  thereafter,  notify  the  township  trustees  to  be  and 
appear  upon  the  premises  to  view  and  assess  the  damages ;  such  notices  to  be  either 
verbal  or  in  writing.  When  two  or  more  trustees  have  assembled,  they  shall  proceed 
to  view  and  assess  the  damages  and  the  amount  to  be  paid  for  keeping  said  stock  ; 
and  if  the  person  or  persons  owning  such  distrained  stock  refuse  to  pay  such  dam- 
ages so  assessed,  then  the  trustees  shall  post  up  notices  in  three  conspicuous  place? 
in  the  township  where  such  damages  were  done,  that  the  said  stock,  or  so  much 
thereof  as  is  necessary  to  pay  said  damages  with  costs  of  sale,  will  be  sold  to  the 
highest  bidder;  any  money  or  stock  left  after  satisfying  such  claims  £hall  be  returned 
to  the  owner  of  the  stock  so  disposed  of;  said  sale  shall  take  place  at  the  inclosure 
where  such  stock  was  distrained  between  the  hours  of  one  and  three  P.  M.  on  the 
tenth  day  after  the  posting  of  said  notice ;  provided,  that  if  any  one  or  more  of  said 
trustees  are  interested  in  said  damages,  the  trustee  or  trustees  not  so  interested  shall 
appoint  some  one  or  more,  as  the  case  may  require,  to  act  in  the  place  of  the  person 
or  persons  so  interested ;  the  owner  of  the  stock,  or  the  person  entitled  to  the  pos- 
session thereof,  when  known,  shall  also  be  notified  of  the  time  and  place  of  the 
meetmg  of  said  trustees  to  assess  said  damages.  When  either  trustee  is  absent  so 
that  notice  cannot  be  served  upon  him,  then  any  justice  of  the  peace  shall  appoint  a 
suitable  person,  having  the  qualifications  of  a  juror,  to  supply  the  place  of  the  absent 
tr.ustee,  and  the  person  so  appointed  shall  serve  as  such  trustee  for  all  the  purposes  of 
this  and  the  following  sections. 

Assessment  filed  with  clerk :  appeal  from.— Sec.  1455.  The  trustees  shall 
make  their  assessment  in  writing  and  file  the  same  with  the  township  clerk,  to  be  of 
record  in  his  office.  Any  person  aggrieved  by  the  action  of  the  trustees  under  this 
chapter,  may  appeal  to  the  circuit  court  of  the  proper  county.  The  bond  shall  be 
filed  with  the  clerk  of  the  township  in  a  penalty  double  the  value  of  the  property  dis- 
trained, or  if  the  value  of  the  property  exceed  the  amount  of  the  damage  claimed, 
then  double  the  amount  of  the  damage.  Notice  of  such  appeal  shall  be  given  in  the 
same  time  and  manner  as  in  appeals  from  a  judgment  of  a  justice  of  the  peace,  with 
good  and  sufficient  securities,  to  be  approved  by  the  clerk ;  and  from  and  after  the 
filing  of  the  appeal  bond,  the  same  shall  operate  as  a  supersedeas.  In  case  tlie 
owner  of  such  be  appellant  the  same  shall  be  delivered  to  him.  The  clerk,  after  the 
appeal  is  taken,  shall  certify  all  the  original  papers  to  the  clerk  of  the  circuit  court 
within  the  time  prescribed  for  the  appeal. 

A.SSOSSniOnt  of  dainnft'O.S. — Tlu?  assessment  of  daina<j:(»H'by 
the  trustees  iit  such  cases  must  be  in  writing  and  may  he  in  the 
followinfr  form: 


23 


354:  TOAVNsnip  tkustees. 

CERTIFICATE  OF  DAMAGES  ASSESSEI>-TKESPASSING  STOCK. 

No.  150. 

County,  Towa,      ) 

Township,    j 

"We,  the  undersigned  trustees  of  said  township,  do  hereby  certify 
that  having  been  duly  notified  by  J  K,  to  be  and  appear  upon 
the  premises  of  the  said  J  K,  in  said  township,  (or  premises  in  his 
actual  possession),  to  view  and  assess  the  damages  done  by  tres- 
passing stock,  to-wit:  [here  designate  the  animals]  distrained  by 
him,  as  alleged,  doing  damage  upon  his  said  premises,  and  having 
met  for  that  purpose  at  said  premises  where  said  stock  was  dis- 
trained on  the  ....  day  of  . . . . ,  18 . . ,  we  proceeded  to  view  and 
assess  the  said  damages  done  by  said  stock,  and  the  amount  to  be 
paid  for  the  keeping  of  said  stock  as  follows: 

1.  The  damages  done  by  said  stock  on  said  premises  we 

appraise  at $40  00 

2.  The  amount  to  be  paid  for  the  keeping  of  said  stock 

to  date 4  00 

3.  The  amount  to  be  paid  for  the  keeping  of  said  stock 

after  this  date,  per  day 2  00 

And  we  further  certify  that  our  fees  for  services  herein  are  as 
follows: 

A . .  . .    B . .  . . ,  one  day's  services $1  00 

C . . . .    D . . . . ,  one  day's  services 1  00 

E .  . . .    F . . . . ,  one  day's  services 1  00 

Dated  this  ....  day  of  . . . . ,  18 . . 

A....  B.... 

C D ,  y  Trustees. 

E....  F.... 

When  the  owner  refuses  to  pay.— The  notice  required 

■when  the  owner  refuses  to  pay  the  damages  so  assessed,  should 
be  posted  in  three  conspicuous  places  in  the  township,  and  may 
be  in  the  following  form: 

NOTICE-SALE  OF  TRESPASSING  STOCK. 
No.  lol. 

....  County,  Iowa,  ) 
....  Township,  \ 
To  all  whom  it  may  coticern: 

Whereas,  the  undersigned,  trustees  of  said  township,  on  the 
....  dayof  ....,  18..,  did  appraise  the  damage  done  by  tres- 
passing stock,  to  wit:  [designate  the  animals],  distrained  doing 
damage  on  the  premises  of  J  K,  in  said  township,  at  the  sum  of 
....  dollars,  and  the  amount  to  be  paid  for  the  keeping  thereof 
at  the  sum  of   ....    dollars,  and  for  the  keeping  of  the    stock 


DUTIES   RELATING   TO    SCHOOL   FUND — FEES,    ETC.  355 

thereafter  at  the  sum  of    dollars  per  day,  and  the  owner  of 

said  stock  having  failed  to  pay  the  damages  so  assessed  or  any 
part  thereof: 

Now,  therefore,  the  undersigned  will  offer  said  stock  for  sale  to 
satisfy  said  damages  and  costs  at  public  auction  to  the  highest 
bidder  for  cash  at  the  premises  of  the  said  J  K,  in  said  township, 
on  the day  of ,  18. . ,at  . .  o'clock,  . .  m.  of  said  day. 

Dated  this   ....  day  of  . . . . ,  18 . 

A....  B....,  ) 

Trustees. 


A.. 

..  B 

C... 

,.  D 

E.. 

..  F 

X.    DUTIES  RELATING  TO  SCHOOL  FUND. 

The  duties  of  trustees  relative  to  the  school    fund  are  very 

important,  and  are  often  neglected.     It  is  important  to  the  proper 

security  of  this  valuable  trust  that  they  should  faithfully  perform 

their  duties.     The  Code  provides  as  follows  therein: 

Duty  as  to  Mraste  of  school  fund.— Section  1858.  The  township  trustees  in  each 
township  shall  see  that  no  waste  be  committed  upon  any  school  lands  lying  in  their 
township,  and  in  case  any  such  waste  be  attempted,  they  shall  apply  by  petition  to 
the  district  or  circuit  court,  or  to  any  judge  thereof,  for  an  injunction  to  stay  waste, 
and  the  same,  if  granted,  shall  be  without  bond.  The  court  may  make  such 
order  in  the  premises  as  shall  be  equitable  and  calculated  to  secure  the  school 
lands  from  waste  or  destruction,  and  may  adjudge  damages  against  the  party  for 
injuries  done  in  such  cases  ;  the  costs  shall  abide  the  event  of  the  suit,  and  the  dam- 
ages shall  be  paid  to  the  county  treasurer,  and  constitute  a  part  of  the  perma- 
nent school  fund. 

XI.    FEES  AND  COMPENSATION. 

The  provisions  of  the  Code  relating  thereto  are  aa  follows: 

Township  trustees. — Section  3808.    The  township  trustees  shall  receive : 

For  each  day's  service  of  eight  hours  necessarily  engaged  in  official  business,  to  be 
paid  out  of  the  cointy  treasury,  to  each  trustee,  two  dollars; 

For  each  day  engaged  in  assessing  damages  done  by  trespassing  animals,  one  dol- 
lar per  day  each,  to  be  paid  as  are  other  costs  in  such  cases ; 

But  when  acting  as  fence  viewers,  or  viewing  or  locating  any  ditch  or  drain,  or  in 
any  other  case  where  provision  is  made  for  their  payment  otherwise,  they  shall  not 
be  pa  paid  out  of  such  treasury. 


356  THE    TOWNSHIP   CLERK. 


CHAPTEE  III. 


THE  TOWNSHIP  CLERK. 

I.    HIS  ELECTION  AND  QUALIFICATION. 

Elected,  everv  year. — Each  township  should  elect  a  town- 
ship clerk  annually.     Code,  Sec.  591. 

How  to  (jualifv. — He  is  required  to  qualify  before  the  board 
of  supervisors  of  the  county.  Code,  Sec.  680.  liut  it  seems  the 
township  trustees  may  require  him  to  give  a  further  bond  in  such 
penalty  as  they  may  deem  proper,  conditioned  as  the  bonds  of 
county  officers,  which  bond  and  the  surety  thereon  shall  be 
approved  by  the  trvistees.  Code,  Sec.  970.  It  is  presumed  that 
this  bond  is  not  strictly  an  official  one,  but  to  secure  the  general 
township  fund  and  the  proper  discharge  of  his  duty  as  keeper  of 
the  tools,  implements,  and  machinery  purchased  for  the  repair  of 
highways. 

Mav  resign. — The  resignation  of  the  township  clerk  may  be 
made  to  the  township  trustees,  and  the  vacancy  in  such  case  may 
be  filled  by  appointment  of  the  trustees,  in  which  case  the  person 
appointed  should  qualify  the  same  as  persons  regularly  elected. 
Code,  793,  786. 

II.     HIS  DUTIES. 

Becords. — Sec.  395.  The  township  clerk  shall  keep  accurate  records  of  the  pro- 
ceedings and  orders  of  the  trustees,  and  perform  such  other  acts  as  may  be  required 
of  him  by  law. 

Oaths. — Sec.  396.  He  is  authorized  to  administer  the  oath  of  office  to  all 
the  township  officers,  and  he  shall  make  a  record  thereof,  and  also  of  all  who  file  cer- 
tificates of  their  having  taken  the  oath  before  any  other  officer  authorized  to  admin- 
ister the  same. 


DUTIES,  OF   TOWNSHIP   CLERK.  357 

Notify  auditor. — Sec.  397.  The  clerk,  immediately  after  the  election  of  officers 
in  his  township,  shall  send  a  written  notice  thereof  to  the  county  auditor,  stating  the 
names  of  the  persons  elected;  and  the  time  of  the  election,  and  shall  enter  the  time  of 
the  election  of  each  officer  in  the  township  record. 

To  administer  the  oatll  of  office. — He  is  required  to  admin- 
ister the  oath  of  office  to  all  tovvnship  officers,  and  approve  their 
official  bonds,  except  those  of  justices  of  the  peace,  constables, 
collectors,  and  his  own,  who  are  required  to  qualify  before  the 
board  of  supervisors. 

He  should  make  a  record  thereof.— He  is  required  to 

make  a  record  of  qualifications  of  officers  before  the  trustees,  and 
of  their  oaths,  and  of  the  approval  of  their  bonds  by  him,  and  also 
of  those  cases  where  the  officers  file  certificates  of  their  having 
taken  an  oath  of  office  before  some  other  officer  authorized  to 
administer  the  same. 

To  send  a  written  notice  thereof  to  the  county  audi- 
tor.— Immediately  after  the  election  of  officers,  or  of  their 
appointment,  he  is  required  to  send  a  written  notice  thereof  to 
'the  county  auditor,  stating  the  names  of  the  persons  elected,  and 
the  time  of  the  election,  and  shall  enter  the  name  and  the  time 
of  the  election  of  each  officer  in  the  record. 

To  act  as  clerk  of  election.— He  is  required  to  act  as  one 
of  the  clerks  at  the  general  election  held  in  the  township,  and  if 
the  township  is  divided  into  precincts,  then  in  the  precinct  in 
which  he  resides.     Code,  Sec.  606. 

To  preserve  tlie  poll  books . — He  is  required  to  file  and 
preserve  in  his  office  one  of  the  poll-books  containing  the  returns 
of  the  judges  of  the  general  elections  in  each  township,  or  pre- 
cinct thereof,  with  the  register  of  election  attached  thereto. 
Code,  Sec.  629. 

To  keep  the  ballots,  etc.— It  is  his  duty  to  keep  the  l)allots 
and  tally  list  of  the  general  election  in  each  township  and  pre- 
cinct, deposited  with  him  by  the  judges  of  election,  until  the 
time  for  contesting  the  election  of  any  officer  has  expired,  and  if 
there  are  two  or  more  precincts  in  the  township,  he  is  required 
to  meet  with  the  trustees  on  the  day  after  the  election,  and 
canvass  the  votes  given  for  tovvnship  officers,  as  siiown  by  the 
returns  from  the  precincts.     Code,  Sees.  630,  (i31. 


358  THE   TOWNSHIP    CLERK. 

When  there  is  a  tie. — When  there  is  a  tie  between  two  per- 
sons for  a  township  office,  the  clerk  should  notify  them  to  appear 
at  his  office  at  a  given  time  to  determine  the  same  by  lot,  before 
one  of  the  trustees,  and  the  clerk;  and  the  certificate  of  election 
is  to  be  given  accordingly,  and  if  either  party  fails  to  appear  or 
take  part  in  the  lot,  the  clerk  should  draw  for  him.  Code,  Sec. 
632. 

To  post  notices  of  the  elected  officers. — Within  five  days 

after  the  ballots  for  township  officers  have  been  canvassed,  the 
clerk  is  required  to  post  up  in  three  public  places  in  the  township 
written  notices  containing  the  names  of  the  persons  elected  to 
township  offices,  at  each  election,  and  requiring  each  of  them  to 
appear  before  a  proper  officer  and  qualify  according  to  law. 
Code,  Sec.  633. 

To  make  a  list  of  voters  in  certain  cases. — The  Code 

provides  in  reference  thereto  as  follows: 

Assessor  to  make  lists  of  voters. — Section  594.  At  every  annual  assessment 
the  township  assessor  shall  record  in  a  separate  book,  the  full  name  and  residence  of 
every  resident  of  the  township  who  is,  or  will  become,  a  qualified  elector  previous  to 
the  next  general  election;  and  shall  deliver  said  list,  properly  certified,  to  the  town- 
ship clerk,  on  or  before  the  first  day  of  July' in  each  year. 

Trustees  and  clerk  board  of  registry. — Sec.  595.  The  township  trustees  and 
clerk  shall  constitute  the  board  of  registry,  and  shall  meet,  annually,  on  the  first 
Monday  in  September,  at  nine  o'clock  A.  M.,  and  make  a  list  of  all  qualified  electors 
in  their  township,  which  shall  be  known  as  the  register  of  elections. 

Register  of  elections:  what  to  contain. — Sec  596.  The  register  of  elections 
shall  contain  the  names  at  full  length,  alphabetically  arranged,  with  the  residence  set 
opposite.  It  shall  be  made  from  the  assessor's  list  and  the  poll  books  of  the  previous 
election,  and  shall  be  kept  by  the  township  clerk,  and  shall  at  all  times  be  open  to 
inspection  at  his  office  without  charge.  He  shall,  also,  within  two  days  after  the 
adjournment  of  the  board,  post  up  a  certified  copy  thereof  in  a  conspicuous  place  in 
his  office,  or  in  such  other  place  as  the  board  may  direct. 

Board:  where  to  meet. — Sec.  597.  The  board  of  registry  shall  hold  a  meeting  at 
the  place  where  the  last  general  election  was  held,  or  if  from  any  cause  it  cannot  be 
held  at  such  place,  thon  at  some  place  to  be  designated  by  notice  published  in  at  least 
one  paper  printed  in  the  township,  or  posted  in  at  least  three  public  places  therein,  on 
the  Tuesday  preceding  the  general  election  of  each  year,  at  which  they  shall  revise, 
correct,  and  complete  the  register  of  elections,  and  shall  hear  any  evidence  that  may 
be  brought  before  them  in  reference  to  such  correction.  Their  session  shall  be  from 
nine  o'clock  A.  M.,  till  five  P.  M.,  and  from  day  to  day  thereafter  until  they  shall  deem 
the  register  properly  completed.  The  names  of  all  persons  not  qualified  as  electors 
shall  be  stricken  from  the  register,  and  any  person  appearing  to  register  his  name 
maybe  challenged  by  any  elector  or  member  of  the  board,  and,  in  case  of  such  chal- 
lenge, shall  be   examined  on  oath  touching  his  qualifications  as  an   elector,  which 


DUTIES    OF   TOWNSHIP    CLERK.  359 

examination  may,  in  the  discretion  of  the  board,  be  reduced  to  writing:  and  if  it  shall 
appear  upon  such  examination  that  the  person  is  entitled  to  be  registered,  in  the 
opinion  of  the  board,  or  if,  after  such  examination,  the  said  person  will  take  an  oath 
that  he  is,  or  will  be  at  the  election  for  which  the  registry  is  made,  a  legal  voter,  stat- 
ing the  ward,  district,  or  township  in  which  he  resides,  and  complying  in  other  respects 
with  the  oath  now  administered  to  an  elector  in  case  of  his  being  challenged,  then 
the  board  shall  cause  the  name  of  said  person  to  be  registered.  But  no  name  shall 
be  added  to  the  register  within  five  days  next  before  the  election. 

Board  appoint  clerk. — Sec.  598.  The  board  of  registry  may  appoint  a  clerk  in 
the  absence  of  the  township  clerk,  and  may  administer  oaths  in  all  cases  coming 
before  them  for  action. 

Clerks  of  cities  and  incorporated  towns  to  prepare  register.— Sec.  599.     In 

corporation  elections,  the  clerk  of  the  city  or  town  shall  prepare  from  the  poll-books 
of  the  last  preceding  annual  election  of  said  corporation,  an  alphabetical  register  of 
the  electors  as  provided  in  section  five  hundred  and  ninety-six  of  this  chapter,  show- 
ing the  residence  of  each  person  by  number  of  dwelHng  if  there  be  a  number,  and 
the  name  of  the  street  or  other  location  of  the  dwelling-place  of  each  person.  And 
he  shall  post  up  one  copy  thereof  in  each  ward  at  the  place  where  the  last  preceding 
election  was  held  one  month  preceding  each  election,  and  furnish  the  ori<'inal  to  the 
board  of  registry  at  their  next  meeting.  The  board  of  registry  for  said  cities  and 
towns  shall  consist  of  the  mayor,  assessor,  clerk,  and  marshal,  who  shall  meet  for 
the  purpose  of  correcting  the  registry  one  week  before  each  election,  at  the  usual 
place  of  meeting  of  the  city  council  or  trustees,  and,  after  having  corrected  the  regis- 
try of  voters  in  each  ward  as  contemplated  in  the  general  provisions  of  this  chapter, 
said  board  shall  cause  a  certified  copy  of  said  registry  for  each  ward  to  be  delivered 
to  the  election  board  of  such  ward  at  or  before  the  time  of  opening  the  polls.  After 
the  canvassing  of  the  votes,  the  registries  shall  be  attached  to  the  poll-books,  and 
filed  in  the  office  of  the  clerk  of  the  city  or  town  for  the  use  of  the  succeeding 
board  of  registry.  The  general  provisions  of  this  chapter  shall  extend  to  incorpo- 
rated towns  and  cities  as  far  as  the  same  may  be  applicable.  But  no  residence  in 
such  cities  or  towns  shall  be  deemed  sufficiently  stated,  unless  the  street  or  other 
location,  and  number,  if  any,  are  specified  in  the  list. 

Special  elections. — Sec.  600.  In  cases  of  special  elections,  the;  township  clerk 
shall  furnish  a  certified  copy  of  the  corrected  registry  for  the  last  preceding  general 
election,  and  the  same  shall  be  corrected  and  completed  at  a  meeting  of  the  board  o 
registry  of  each  township,  held  on  the  Tuesday  preceding  the  special  election  at  the 
usual  place,  in  the  manner  hereinbefore  provided. 

Board  in  new  townships. — Sec.  601.  When  a  new  township  has  been  formed, 
by  division  or  otherwise,  the  persons  appointed  to  act  as  judges  and  clerks  of  the 
first  election  in  such  new  township  shall  also  constitute  the  board  of  registry  therein  ; 
and  the  clerks  of  the  township  or  townships  from  which  the  territory  of  the  new 
township  has  been  taken,  shall  furnish  to  such  board  a  list  of  the  registered  legal 
voters  residing  in  such  territory. 

When  not  applicable.— Sec.  602.  This  chapter  shall  not  apply  to  townships, 
incorporated  towns,  or  cities,  having  a  population  of  less  than  six  thousand  inhabi- 
tants, as  shown  by  the  last  preceding  census. 

To  notify  trustees  of  vacancies  in  townsbip  ollices.— 

When  notified   by  the   county  auditor  of  a  vacancy  in  the  oflice 
of  justice  of  the  peace  or   constable   of  the  township,  the   ch'ik 


360  THE   TOWNSHIP   CLERK. 

should  -within  five  days  thereafter,  notify  each  trustee  of  the 
township,  and  of  the  time  and  place  when  they  are  required  to 
meet  for  the  purpose  of  filling  such  vacancy  by  appointment. 

After  the  appointment.— After  the  appointment  he  is 
required  to  record  the  same  in  the  township  record  book,  and 
cause  a  notice  to  be  served  upon  the  person  so  appointed, 
informing  him  of  his  appointment,  by  any  constable  of  the  town- 
ship in  the  manner  prescribed  by  law  for  the  service  of  notices, 
and  the  person  so  appointed  and  notified  should  qualify  within 
ten  days  thereafter.     Code,  Sees.  704,  795. 

III.     DUTY  AND  POWERS  RELATING  TO  HIGHWAYS. 
The  Code  provides  as  follows: 

Ftirnish  supervisor  with  plat.— Six.  972.  The  township  clerk  shall  furnish 
each  supervisor,  to  be  by  him  transferred  to  his  successor  in  office,  with  a  copy  of  so 
much  of  the  map  or  plat  furnished  such  clerk  by  the  auditor  as  relates  to  the  high- 
ways in  the  district  of  such  supenisor,  and,  from  time  to  time,  to  mark  thereon 
the  changes  in  or  additions  to  such  highways  as  the  same  are  certified  to  him  by  the 
auditor. 

Furnish  tax  list :  duty  of  county  auditor. — Si'.c.  97.3.  The  township  clerk 
shall,  within  four  \veeks  after  the  trustees  have  levied  the  property  tax,  make  out  a 
tax  list  for  each  highway  district  in  his  township,  which  list  shall  be  in  tabular  form 
and  in  alphabetical  order,  having  distinct  columns  for  lands,  town  lots,  and  personal 
property,  and  carry  out  in  a  column  the  amount  of  the  tax  on  each  piece  of  land, 
and  town  lot,  and  on  the  amount  of  personal  property  belonging  to  each  individual ; 
and  he  shall  carry  out  the  amount  of  tax  to  be  paid  in  money,  due  from  each  indi- 
vidual in  a  colum  by  itself;  which  list  shall  contain  the  names  of  all  persons  required 
to  perform  two  days'  labor  upon  the  highway  as  a  poll-tax;  and  to  enable  the 
township  clerk  to  make  out  such  tax  list,  the  assessor  shall  furnish  the  township 
clerk  of  each  township,  on  or  before  the  first  day  of  April  of  each  year,  a  correct 
copy  of  the  assessment  lists  of  said  township  for  that  year,  which  list  shall  be  the 
basis  of  such  tax  list.  The  county  auditor  shall  furnish  the  several  township  clerks 
of  his  county  with  jjrinted  blanks  necessary  to  carry  into  effect  the  provisions  of  this 
chapter. 

List:  what  to  contain. — Sec.  974.  The  township  clerk  shall  make  an  entry  upon 
such  tax  list  showing  what  it  is,  for  what  highway  district,  and  for  what  year,  and  shall 
attach  to  the  list  his  warrant  under  his  hand,  in  general  terms,  requiring  the  supervisor 
of  such  district  to  collect  the  taxes  therein  charged  as  herein  provided;  and  no  infor- 
mality in  the  above  requirements  shall  render  any  proceedings  for  the  collection  of 
such  taxes  illegal.  The  clerk  is  hereby  required  to  cause  such  lists  to  be  delivered 
to  the  proper  supervisors  of  his  township  within  thirty  days  after  the  levy,  and  take 
receipts  therefor ;  and  such  list  shall  be  full  and  sufficient  authority  for  the  supervisor 
to  collect  all  taxes  therein  charged  against  resident  property-holders  in  his  district. 

When  taxes  have  not  been  paid. — Sec.  975.  The  township  clerk  shall,  on  or 
before   the  second   Monday  in  October  in  each  year,  make  out  a  certified  list  of  all 


DITTT    EELATIXG    TO    DKAIZS'AGE.  361 

land,  town  lols,  and  personal  property  on  which  the  highway  tax  has  not  been  paid, 
and  the  amount  of  tax  charged  on  each  parcel  of  land,  town  lot,  or  personal  property, 
designating  the  district  in  which  the  same  is  situated,  and  transmit  the  same  to  the 
auditor,  who  shall  enter  the  amount  of  tax  to  each  piece  of  land  or  town  lot  and 
person  taxed  for  personal  property  in  the  column  ruled  for  that  purpose,  the  same  as 
other  taxes,  and  deliver  the  same  to  the  county  treasurer,  charging  him  with  the  same, 
which  shall  be  collected  by  such  treasurer  in  the  same  manner  that  county  taxes  are 
collected ;  and  in  case  the  township  clerk  shall  fail  or  neglect  to  make  such  return,  he 
shall  forfeit  and  pay  to  the  use  of  the  township,  for  highway  purposes,  a  sum  equal 
to  the  amotint  of  tax  on  said  land,  which  may  be  collected  by  suit  on  his  official  bond 
before  any  court  having  competent  jurisdiction. 

County  treasurer  to  pay  clerk, — Sec.  976.  The  county  treasurer  shall,  on  the 
last  Monday  in  March  and  September  in  each  year,  pay  to  the  township  clerk  all  the 
highway  taxes  belonging  to  his  township  which  are  at  such  times  in  his  hands,  taking 
the  duplicate  receipts  of  such  clerk  therefor,  one  of  which  shall  be  delivered  by  such 
treasurer,  on  or  before  the  first  Monday  in  April  and  October  in  each  year,  to  the 
trustees. 

To  approve  bonds  of   the  road   supervisors. — Road 

supervisors  are  required  to  give  bonds  for  the  faithful  discharge 
of  their  duties,  and  township  clerks  have  the  approval  of  the 
same. 

To  notify  supervisors  of  roads. — It  is  his  duty  to  notify 

each  supervisor  of  roads  of  his  township,  within  five  days  after 
his  election  or  appointment  of  the  same,  and  if  he  fail  to  appear 
before  said  clerk,  unless  prevented  by  sickness,  within  ten  days 
thereafter,  and  give  bond  and  take  the  oath  of  oflBce,  he  forfeits 
and  is  required  to  pay  the  sum  of  five  dollars,  to  be  recovered  by 
his  successor  in  oflBce.     Code,  Sees.  978,  979, 

After  a  highway  has  been  established  and  certified  to  him  by 
the  count}'  auditor,  he  is  required  to  direct  the  road  supervisor 
to  have  the  same  opened  and  worked.  Session  Laws,  1874, 
Chaj).  19. 

lY.     DUTY  IN  PnOCEEDTXGS  RELATING  TO  DRAIN- 
AGE. 

^Ve  have  already  observed  in  the  treatment  of  township  trus- 
tees, that  the  township  clerk  is  required  to  file  the  written 
applications  of  claimants  in  such  cases,  and  to  give  notice  thereof 
to  the  trustees;  to  approve  the  bonds  that  the  trustees  may 
require  of  applicants  for  the  payment  of  the  costs  and  expenses 
of  the  i)r()Coeding,  and  on  apjx'ul    being  taken  from  the  decision 


362  THE    TOWNSHIP   CLERK. 

of  the  trustees  in  such  cases,  he  has  the  approval  of  the  appeal 
bond,  and  within  ten  days  thereafter  must  make  out  and  certify  a 
transcript  of  the  proceedings,  and  file  the  same  with  the  clerk  of 
the  Circuit  Court.     Code,  Sees.  1218,  1^'21,  1223. 

V.     IN  CASES  OF  TRESPASSING  ANIMALS. 

He  is  required  to  file  and  record  the  assessment  of  damages 
done  by  trespassing  animals  made  by  the  township  trustees.  Code, 
Sec.  1455. 

VI.     HIS  ACCOUNT  WITH  THE  ROAD  FUND. 

The  township  clerk  must  necessarily  keep  an  account  with  the 
road  fund  of  his  township,  which  may  be   in  the   following  form: 

ACCOUNT  WITH  THE  ROAD  FUND. 
■No.  153. 

John  Roe,  Township  Clerk     .  . .  Township, County,  Iowa, 

in  account  with  said  township: 

1870.  Dr. 

Jan.    10.  To  cash  received  of  County  Treasurer $450.00 

Jan.    25.  To  cash  received  of  Sam  Hitch 100.00 

May     1.  To  cash  received  of  R.  Doe 4.50 

June  10.  To  cash  received  of  Sam  Patch 1  75 

Oct.      1.  To  cash  received  of  Dick  Hixon 10.00 

Total -$56G.25 

Cr. 

Aug.     1.     By  cash  paid  for  scraper,  receipt  No.  1 8     10.00 

Aug.  10.  By  cash  paid  to  Dick  Hixon,  receipt  No.  2 . .  25.00 
Auff.   11.     By  cash  paid  A.    Knapp  for   lumber,  receipt 

No.  3. 100.00 

Aug.   15.     By  cash  paid  S.  Toby  for  work    by  order  of 

Trustees,  receipt  No.  4 200.00 

Sept.    1.     By  balance  cash  on  hand 231.25 

Total $506.25 

ACCOUNT  WITH  SUPEEVISOES. 
No.  153. 

Dick  Hixon,  Road  Supervisor  of  Road  Dist.  No.  1, 

Township, County,  in  account  with  said  township: 


township  eecokd  book.  363 

1870.  Dk. 

April     1.     To  tax  list  of  said  township $  500.00 

Aug.  10.     To  cash 25.00 

Total $  525.00 

Cr. 

Oct.       1.     By  tax  collected  in  labor,  as  shown  by  book. $  300.00 

Oct.       3.     By  tax  collected  in  cash,  as  shown  by  book. .  100.00 

Oct.       5.     By  cash  paid  for  work,  as  per  voucher 15.00 

Oct.     21.     By  delinquent  tax  list  returned 100.00 

Sept.     1.     By  cash  returned  to  clerk 10.00 

Total $  525.00 

VII .    THE  TOWNSHIP  RECORD  BOOK. 

His  dutv  herein. — The  most  important  duty,  as  well  as  one 
requiring  the  most  care  and  ability,  is  that  of  keeping  proper 
records  of  the  proceedings  of  the  board  and  of  official  acts  of  the 
trustees. 

The  following  form  may  be  of  service  to  them  in  the  perform- 
ance of  this  duty: 


No.  154. 


TOWNSHIP  RECORD  BOOK. 


Township  Record  Booh. 


....    Township,    ....    County,  Iowa,  ) 

April  . . ,  18 . . ,  it  being  the  first  Monday  in  April.  [ 

At  a  meeting  of  the  trustees  of  ....  township,  ....  county, 
Iowa,  held  at  the  office  of  the  township  clerk  of  said  township, 
this  ....  day  of  April,  IS .  . ,  there  were  present  E  M  H,  L  C  N, 
and  A  A  M,  trustees,  and  V  C  W,  clerk. 

E  M  H  was  duly  elected  chairman  of  the  board. 

Whereupon  the  following  proceedings  were  had: 

On  motion  of  L  C  N,  the  board  proceeded  to  equalize  the 
assessments  of  the  township. 

The  petition  of  .T  J  for  the  reduction  of  his  assessment  on  the 
s  \  of  the  nw.  qr.  sec.  10,  84-,  4,  was  granted,  and  the  assessment 
thereon  was  reduced  from  %. .  .  .  to  $   .... 

The  petition  of  li  M  to  reduce  his  assessment  on  moneys  and 
credits  was  refused. 

The  petition  of  W  S  to  increase  the  assessment  of  J  W  on 
shares  in  the  First  National  Bank  of  .  .  .  .,  was  granted,  and  said 
assessment  was  ordered  t(j  be  increased  from  $.  .  .  .  to  $ 

It  appearing  to  the  board  that  Lot  No.  . .,  in  Sec.  . .,  in  .... 
Tp.,  is  omitted  from  the  assessment  list,  and  not  assessed,  it  was 


364  TUE   TOWNSHIP   CLERK. 

ordered  that  said  property  be  listed  by  the  assessor,  and  assessed 
at  $ 

It  appearing  to  the  board  that  the  ne.  qr.  of  the  ne.  qr.  of  Sec. 
one  in  ....  Tp.,  is  not  assessed  sufficient  to  make  it  ecjual  with 
other  real  estate,  it  was  ordered  that  the  assessment  thereof  be 
increased  from  S . .  . .  to  $ ...  . 

It  appearing  to  the  board  that  the  assessment  on  merchandise 
in  the  township  is  not  made  equal  with  other  property,  it  was 
ordered  that  the  assessment  in  all  cases  be  increased  ....  per 
cent. 

On  motion  the  board  adjourned  till  to-morrow  morning  at  9 
o'clock. 

April ,  18. . 

The  board  met  pursuant  to  adjournment.  The  members  being 
all  present. 

^N^hereupon  the  following  proceedings  were  had: 

The  following  resolution  was  adopted: 

Hesolved,  That  there  be  levied  for  highways  in  the  township  a 
tax  of  three  mills  on  the  dollar,  on  amount  of  the  assessment. 

On  motion,  it  was  ordered  that  one-half  of  the  amount  of  said 
tax  be  paj'able  in  highway  labor. 

It  was  further  ordered,  that  the  amount  allowed  for  a  day's 
labor  done  by  a  man  on  the  highway  shall  be  $1.50,  and  for  a  man 
and  team  $3.00. 

The  board  then  on  motion  adjourned  sine  die. 

v....   C...    W....,  Clerk. 

October  . . . . ,  18 . . 

This  being  the  first  Monday  in  October,  the  trustees  of  the 
township  met  at  the  office  of  the  clerk  of  said  township.  Present 
E  M  H,  L  C  N  and  A  A  M,  trustees,  and  V  C  W,  clerk. 

The  board  w^as  then  duly  organized  by  the  election  of  L  C  N, 
chairman;  whereupon  the  following  proceedings  were  had: 

It  was  thereupon  ordered  and  directed  by  the  board  that  the 
township  be  divided  into  four  highway  districts,  and  numbered 
and  described  as  follows: 

Highway  District  No.  1,  shall  embrace  all  of  sections  No 

Highway  District  No.  2,  shall  embrace  all  of  sections  No. 
etc  ,  etc. 

Highw-ay  District  No.  3,  shall  embrace,  etc.,  etc. 

Highway  District  No.  4,  shall  embrace,  etc.,  etc. 

The  board  on  motion  adopted  the  following  rules  and  regula- 
tions for  the  protection  of  the  public  health,  to-wit:  [lip're  insert 
the  rules  and  regulations  adopted  by  them  as  a  township  board  of 
health.] 

And  thereupon  it  was  resolved  by  the  board,  that  the  board  of 
supervisors  of  the  county  be  directed  to  levy  a  tax  on  the  prop- 
erty of  the  township,  sutEcient  to  raise  $200,  for  the  purpose  of 


CERTIFIED    COPIES    OF    RECORD    AS   ETIDENCE.  365 

carrying-  out  the  rules  and  regulations   of   the  board  of  health  in 
addition  to  the  general  taxes. 

The  board  then  proceeded  to  examine  the  accounts,  and  settle 
with  the  township  clerk  and  supervisors  of  roads: 

The  account  of  the  clerk  is  as  follows:  [here  state  the  account 
which  should  be  carefully  examined  by  the  board,  and  the  vouch- 
ers which  the  clerk  may  hold  for  moneys  paid  out  to  ascertain  its 
correctness,  and  if  the  accounts  are  found  correct  add:] 

And  said  account  and  the  vouchers  of  said  clerk  being  fully 
examined  by  the  board,  were  found  correct,  and  were  approved 
by  the  board. 

[And  so  continue  the  record  of  the  settlement  with  the  super- 
visors of  roads]. 

The  board  then  adjourned  si?ie  die. 

.  v....  C...  W   ...,  ClerJc. 

The  above  forms  will  probably  furnish  a  sufficient  guide  to  the 
clerk. 

Other  matters  to  be  recorded. — If  the  trustees  make  any 
order  on  an  application  to  drain  lands,  or  make  any  appointment 
to  fill  a  vacancy  in  office,  certify  a  division  of  a  partition  fence, 
or  the  amount  of  damage  done  by  trespassing  animals  distrained, 
as  provided  by  law,  these  and  various  other  acts  and  proceedings 
should  be  recorded  by  the  clerk. 

VIII.     CERTIFIED  COPIES  OF  HIS  RECORD   AS   EVI- 
DENCE. 

A  copy  of  any  record  in  his  office  duly  certified  by  him,  is  evi- 
dence in  all  cases  of  equal  credibility,  with  the  original  record. 


TOWNSHIP  CLERK'S  CERTIFICATE  OF  RECORD. 
No.  lo5. 


County,  Iowa, 
....  Tow 


,  Iowa,  ) 
wnship.  \ 


I,  V  (J  W,  township  clerk  of  said  township,  hereby  certify  that 
the  foregoing  transcript  is  a  copy  from  the  records  of  said  town- 
ship in  my  office;  that  1  have  compared  it  with  the  original 
record,  and  the  same  is  a  correct  transcript  therefrom,  and  of  the 
whole  of  such  original. 

Witness  my  hand  this     . . .    day  of  . . . . ,  18 . . . 

v....  C...  AV....,  Cleric. 


3G6  THE   TOWNSHIP   CLERK. 

IX.    FEES  AND  COMPENSATION. 

The  provisions  of  the  Code,  in  reference  to  his  compensation 
are  as  follows: 

Township  clerk.— Section  3809.     The  township  clerk  shall  receive  : 

For  each  day  of  eight  hours  necessarily  engaged  in  ofiicial  business,  where  no  other 
compensation  or  mode  of  payment  is  provided,  to  be  paid  from  the  county  treasury, 
two  dollars ; 

For  all  money  coming  in  his  hands  by  virtue  of  his  office,  five  per  cent ; 

For  filing  each  application  for  a  drain  or  ditch,  fifty  cents; 

For  recording  each  person's  mark  or  brand  for  animals,  twenty-five  cents ; 

For  making  out  and  certifying  the  papers  in  any  appeal  taken  from  an  assessment 
by  the  trustees  of  damages  done  by  trespassing  animals,  such  additional  compensa- 
tion in  such  cases  as  the  board  of  supervisors  may  deem  reasonable  and  allow. 

In  addition  to  the  above  provisions  for  fees,  it  would  appear 
that  he  is  entitled  to  ten  cents  for  every  one  hundred  words  in 
making  out  a  transcript  on  appeal  from  the  decision  of  the  trus- 
tees in  proceedings  for  drainage  of  marsh  and  swamp  lands,  and 
for  all  other  records  certified  by  him  the  same  amount.  Code, 
Sec.  3819. 


ELECTION   AND   QUALIFICATION — DUTIES.  367 


CHAPTER    lY. 


CONSTABLES. 

I.    ELECTION  AND  QUALIFICATION,  ETC. 

The  provisions  of  the  Code,  relating  to  the  election  and  qualifi- 
cation of  constables  may  be  found  on  pages  4  and  335.  From 
these  provisions  it  will  be  seen  that  they  should  be  elected  at  the 
general  election  in  each  even  numbered  year,  and  that  they  hold 
their.offices  for  the  term  of  two  years. 

Removal— suspension— additional  security,  etc.— The 

general  provisions  of  the  Code  in  reference  to  removal,  suspen- 
sion from  office,  additional  security,  and  vacancies  in  office,  apply  to 
constables;  and  the  general  directions  and  forms  given  in  treating 
of  these  matters  in  connection  with  the  office  of  the  clerk,  may 
be  consulted  by  the  constable  in  such  cases. 

Vacancies,  how  filled- — When  a  vacancy  occurs  in  the  office 
of  constable  more  than  thirty  days  prior  to  any  general  election, 
it  may  be  filled  by  appointment  made  by  the  township  trustees, 
and  the  person  so  appointed  must  qualify  within  ten  days  after 
notice  thereof,  from  the  township  clerk,  has  been  duly  served  upon 
him,  and  the  auditor  may  approve  of  the  bond  of  the  constable 
so  appointed,  on  the  recommendation  of  the  sureties  upon  such 
bond,  signed  by  any  member  of  the  board  of  supervisors.  Code, 
Sec.  794. 

IT.     HIS  DUTIES. 

To  serve  process. — Provisions  of  the  Code. 
Constables:  duty. — Section  308.    The  constables  shall  serve  all  warrants,  notices, 


368  CONSTABLES. 

and  other  process,  lawfully  directed  to   tliein  by  the  trustees  or  clerk  of  the  town- 
ship, or  any  court,  and  perform  such  other  duties  as  are  or  may  be  required  by  law. 
Sec.  399.     Constables  arc  ministerial  officers  of  justices  of  the  peace. 

To  execute  warrants  of  the  coroner.  —He  is  required 

to  execute  the  warrants  of  the  coroner  for  th(?  summoning  of 
jurors  to  hold  an  inquest,  and  also  for  the  arrest  of  any  party 
found  by  the  coroner's  jury  to  have  committed  a  crime  on  the  body 
of  the  deceased.     Code,  Sec.  362.  ^ 

To  attend  elections. — The  Code  provides  for  his  attendance 
at  the  place  of  elections  and  his  authority  and  duty  there  as 
follows: 

Order:  preservation  of. — Skc.  fil2.  Any  constable  of  the  township  who  may  be 
designated  by  the  judges  of  election  is  directed  to  attend  at  the  place  of  election,  and 
he  is  authorized  and  required'  to  preserve  order  and  peace  at  and  about  the  same; 
and  if  no  constable  be  in  attendance,  the  judges  of  the  election  may  appoint  one  or 
more  specially,  by  writing,  who  shall  have  all  the  powers  of  a  regular  constable. 

Sec.  61.3.  If  any  person  conducts  in  a  noisy,  riotous,  or  tumultuous  manner  at 
or  about  the  polls  so  as  to  disturb  the  election,  or  insults  or  abuses  the  judges  or  clerks 
of  election,  the  constable  may  forthwith  arrest  him  and  bring  him  before  the  judges, 
and  they,  by  a  warrant  under  their  hands,  may  commit  him  to  the  jail  of  the  county 
for  a  term  not  e.xoeedmg  twenty-four  hours  ;  but  they  shall  permit  him  to  vote. 

To  administer  oaths  and  take  answers  of  garnishees. 

— The  constable  has  the  same  power  to  administer  oaths  to  the 
garnishee,  and  take  his  answers,  as  is  given  to  the  sheriff  in  cases 
of  attachment.     Code,  Sec.  3607. 

His  duty,  powers,  etc.,  same  as  the  sheriff.— In  the  exe- 
cution of  process  properly  directed  to  him,  he  has  the  same 
power,  and  his  duty  in  all  respects  is  similar  to  that  of  the  sheriff 
in  similar  cases,  and  his  duty  as  a  peace  officer  is  also  the  same; 
and  he  is  referred  to  the  treatment  of  the  subject  of  in  Chapter 
VIII,  et  seq.,  for  full  directions  and  a  complete  guide  in  all  these 
official  duties  and  acts.     Code,  Sec.  3632. 

The  full  consideration  of  these  matters  there  given,  renders  a 
repetition  of  the  same  here  unnecessary. 

III.     OFFENSES  IN  OFFICE. 

Acts  prollibited. — The  constable  is  prohibited  from  appear- 
ing in  any  court  as  the  attorney  of  any  party,  or  from  making 
any  process  to  commence,  or  to  be   in  any  manner  used   in  the 


FEES   AND   COMPENSATION.  369 

same;  and  also  from  becoming  the  purchaser,  either  directly  or 
indirectly,  of  any  property  by  him  exposed  for  sale  under  any 
process  of  law.     Code,  Sees.  342,  343. 

General  provisions . — The  general  provisions  of  the  Code 
relating  to  offenses  in  office  and  their  punishment  may  be  found 
in  Chapter  One,  page  14. 

IV.     FEES  AND  COxMPENSATION. 

The  provisions  of  the  Code  providing  for  the  fees  and  compen- 
sation of  the  constable,  are  as  follows: 

Section  3805.  Constables  shall  be  entitled  to  charge  and  receive  the  following 
fees : 

For  serving  any  notice  or  civil  process  on  each  person  named  therein,  fifty  cents; 

For  copy  thereof  when  required,  ten  cents; 

For  serving  attachment  or  order  for  the  delivery  of  property,  fifty  cents; 

For  travelling  fees,  going  and  returning,  per  mile,  five  cents  ; 

For  summoning  a  jury,  including  mileage,  one  dollar; 

For  attending  the  same  on  trial,  for  each  calendar  day,  one  dollar; 

For  serving  execution,  besides  mileage,  fifiy  cents  , 

For  advertising  and  selling  property,  seventy-five  cents; 

For  advertising  without  selling,  twenty-five  cents; 

For  return  of  execution  when  no  levy  is  made,  ten  cents ; 

For  serving  each  subpcena,  besides  mileage,  fifteen  cents ; 

For  posting  up  each  notice  required  by  law,  fifteen  cents ; 
■  For  serving  each  warrant  of  any  kind,  seventy-five  cents  ; 

For  attending  each  trial  in  a  criminal  case,  for  each  calendar  day,  one  dollar  ; 

For  serving  each  mittimus  or  order  of  release,  besides  mileage,  thirty  cents  ; 

For  all  money  collected  on  execution  and  paid  over,  except  costs,  five  per  cent., 
which  shall  constitute  part  of  the  costs. 

In  criminal  cases. — Sec.  3806.  The  fees  contemplated  in  the  two  preceding 
sections  in  criminal  cases  shall  be  audited  and  paid  out  of  the  county  treasury 
in  any  case  where  the  prosecution  fails,  or  where  such  fees  cannot  be  made  from  the 
person  liable  to  pay  the  same,  the  facts  being  certified  by  the  justice  and  verified  by 
affidavit. 

Officers  seizing  intoxicating  liquors.— Sec.  3807.  A  constable  or  other 
officer  who  serves  any  warrant  for  the  seizure  of  intoxicating  liquors  shall  be  allowed  : 

For  such  service,  one  dollar  : 

For  the  removal  and  custody  of  such  liquor,  his  reasonable  expenses  ; 

For  tlie  destruction  of  such  liquor  under  the  order  of  the  court,  his  reasonable 
expenses  and  one  dollar; 

For  posting  and  leaving  notices  in  such  cases,  one  dollar. 

Otiier  fees. — Besides  the  above  fees  he  is  entitled  to  twenty- 
five  cents  for  each  warrant  served  on  appraisers  on  proceedings 
in  respect  to  estrays.     Code,  Sec.  3S22. 
24 


070  CONSTABLES. 

V.     SUMMARY  PROCEEDINGS  AGAINST. 

Judgments  on  motion.— Judgments  may  be  obtained  by- 
plaintiffs  in  executions  on  motion  against  constables  for  the  recov- 
ery of  money  or  property  collected  by  them.     Code,  Sec.  2906. 


ELECTION    AND    QUALIFICATION DUTIES,  ETC.  371 


CHAPTER    Y. 


TOWNSHIP    ASSESSOR. 

I.     ELECTION  AND  QUALIFICATION. 

Election . — One  assessor  is  required  to  be  elected  annually  in 
each  township,  and  he  holds  his  office  for  one  year. 

Qualification. — The  penalty  of  his  official  bond  should  be 
fixed  by  the  board  of  supervisors  of  the  county.     Code,  Sec.  678. 

But  the  bond  must  be  approved  by  the  township  clerk,  and 
assessors  should  take  the  usual  oath  of  office.     Code,  Sec.  675. 

11.     DUTIES  AND  POWERS. 

To  make  a  list  of  voters.— At  every  annual  assessment  he 
is  required,  in  townships  having  a  population  of  six  thousand 
inhabitants  and  over,  to  record  in  a  separate  book  the  full  name 
and  residence  of  every  resident  of  the  township  who  is  or  will 
become  a  qualified  elector  previous  to  the  next  general  election, 
and  deliver  said  list  properly  certified  to  the  township  clerk  on  or 
before  the  first  day  of  July  in  each  year.     Code,  Sec.  594. 

To  assess  the  township.— The  provisions  of  the  Code 
relating  to  his  rluty  as  assessor,  are  as  follows: 

When  to  begin:  how  to  list  property.— Section  822.  Each  assessor  shall 
enter  upon  the  fliscli;irgn  of  the  duties  of  liis  office  on  the  third  Monday  in  January 
of  each  year,  and  shall,  with  the  assistance  of  each  person  assessed,  or  who  may  he 
required  by  law  to  list  property  belonging  to  another,  enter  in  the  books  furnished 
him  for  that  purpose,  the  several  items  specified  in  the  preceding  section;  entering 
the  names  of  the  persons  assessed  in  alphabetical  order,  so  far  as  practicable,  by 
alloting  to  each  letter  its  requisite  number  of  pages  in  each  of  the  said  books.  He 
shall  note  opposite  each  piece  or  parcel  of  property  by  him  assessed,  in  a  column  of  his 
book  prepared  for  that  purpose,  the  number  of  the  highw.iy,  independent  school 
districts,  district  township,  or  sub-district  in  which  said  proi)eriy  is  hitu.itcd. 


373  TOWNSHIP   ASSESSOR. 

Assess  values:  penalty  for  refusal  to  take  oath. — Skc.  823.  The  assessor  shall 
list  every  person  in  his  township,  and  r.ssess  all  the  property,  personal  and  real, 
therein,  except  such  as  is  heretofore  specifically  exempted;  and  any  person  who  shall 
refuse  to  assist  in  making  out  a  list  of  his  property,  or  of  any  property  which  he  is 
by  law  required  to  assist  in  listing,  or  who  shall  refuse  to  make  the  oath  required  by  the 
next  section,  shall  forfeit  the  sum  of  one  hundred  dollars,  to  be  recovered  in  the  name 
of  the  county  for  the  use  of  common  schools  therein;  and  the  assessor  shall  assess 
such  person  according  to  the  best  information  he  can  get. 

Sec.  824.  The  assessor  shall  administer  an  oath,  or  affirmation,  to  each  person 
assessed,  to  the  effect  that  he  has  given  in  a  full,  true,  and  correct  inventory  of  all 
the  taxable  property  owned  by  him,  and  all  property  which  he  is  required  by  law  to 
list,  to  the  best  of  his  knowledge  and  belief ;  and  in  case  any  one  refuse  to  make  such 
oath,  or  affirmation,  the  assessor  shall  note  the  fact  in  the  column  of  remarks  opposite 
such  person's  name,  and  should  it  afterwards  appear  that  such  person  so  refusing  has 
not  given  a  full  list  of  his  property,  or  that  which  he  was  required  by  law  to  list,  any 
property  so  omitted  shall  be  entered  on  the  book  at  double  its  ordinary .  assessable 
value  and  taxed  accordingly. 

Deliver  books  to  township  clerk  and  county  auditor. — Sec.  825.  Each  assessor 
shall,  on  or  before  the  first  Monday  in  April  of  each  year,  deliver  to  the  clerk  of  his 
township,  one  of  the  assessment  books,  to  be  used  by  the  trustees  for  the  equalization 
of  assessments,  and  for  the  levy  of  taxes  for  township  and  highway  purposes.  Said 
book  shall  have  the  several  columns  of  numbers  and  values  correctly  footed  up,  and 
amount  of  personal  property  assessed  to  each  person  carried  forward  into  a  column 
under  the  head  of  "  total  personal  property;  "  the  other  book  he  shall  return  to  the 
office  of  the  county  auditor,  on  or  before  the  third  Monday  in  May  of  each  year, 
which  book  shall  be  a  correct  copy  of  the  first,  after  the  same  has  been  corrected  by 
the  township  board  of  equalization. 

Owner  unknown. — Sec.  826.  When  the  name  of  the  owner  of  any  real  estate  is 
unknown,  it  shall  be  lawful  to  assess  such  real  estate  without  connecting  therewith 
any  name,  but  inscribing  at  the  head  of  the  page  the  words,  "owners  unknown;" 
and  such  property,  whether  lands  or  town  lots,  shall  be  listed,  as  near  as  practicable, 
ia  the  order  of  the  numbers  thereof;  and  no  one  description  shall  comprise  more 
than  one  town  lot,  or  more  than  the  sixteenth  part  of  a  section  or  other  smallest  sub- 
division of  the  land  according  to  the  government  surveys,  except  in  cases  where  the 
boundaries  are  so  irregular  that  it  cannot  be  described  in  the  usual  manner  in  accord- 
ance with  such  surveys. 

Penalty  for  neglect. — Sec.  827.  If  any  assessor  shall  fail  or  neglect  to  perform 
any  of  the  duties  required  of  him  by  this  chapter,  at  the  time  and  in  the  manner 
specified,  he  shall  be  liable  to  a  fine  of  not  less  than  twenty  nor  more  than  five  hundred 
dollars,  to  be  recovered  in  an  action  brought  in  the  district  court  in  the  name  of  the 
county,  and  judgment  shall  be  against  him  and  his  bondsmen. 

To  meet  the  board  of  equalization.— It  is  the  duty  of 

the  assessor  to  meet  with  the  township  board  of  equalization  on 
the  first  Monday  in  April  in  each  year,  and  correct  his  assessment 
book  as  they  may  direct.     Code,  Sec.  831. 

To  make  lists  of  persons  subject  to  military  duty.— 

It  is  his  duty  at  the  time  of  makinor  the  annual  assessment  to  make 
and  return  to  the  auditor  of  the  county  a  correct  list  of  persons 


COMPENSATION.  373 

subject  to  military  duty,  and  to  post  up  in  at  least  two  public 
places  in  the  township  written  or  printed  lists  containing  the  names 
of  all  persons  subject  to  military  duty. 

The  provisions  of  the  Code  relating  thereto,  are  as  follows: 

Who  compose.— Section  1039.  All  the  able-bodied  male  citizens  of  the  state, 
between  the  ages  of  eighteen  and  forty-five  years,  who  are  not  exempt  from  military 
duty  agreeably  to  the  laws  of  the  United  States,  constitute  the  military  force  of  this 
state. 

Who  exempt. — Sec.  1040.  All  officers,  non-commissioned  officers,  and  privates 
who  have  served  in  the  United  States  service  for  the  period  of  two  years,  and  have 
been  honorably  discharged,  are  exempt  from  duty  under  the  military  laws  of  this 
state.  But  nothing  in  this  section  shall  be  so  construed  as  to  prohibit  the  executive 
from  calling  upon  such  persons  in  times  of  public  danger  to  the  state  or  national 
government. 

Assessors  to  make  list. — Sec.  1041.  Assessors  in  each  township  are  required 
to  make  and  return  to  the  county  auditor  of  their  respective  counties,  at  the  time  of 
making  the  annual  assessment,  a  correct  list  of  persons  subject  to  military  duty,  and 
to  post  up  in  at  least  two  public  places  in  their  respective  townships,  written  or 
printed  lists  containing  the  names  of  all  persons  subject  to  military  duty. 

To  enumerate  the  children  of  deceased  soldiers.— The 

provisions  of  the  Code  in  relation  thereto  are  as  follows: 

Assessor  to  enumerate  children  of  deceased  soldiers.— Section  1635.  The  asses- 
sor of  each  ward  and  township,  when  lie  is  making  assessment  for  each  term  of  two 
years,  shall  take  an  enumeration  of  all  the  children  of  deceased  soldiers  who  were 
in  the  military  service  of  the  government  of  the  United  States  from  his  ward  or  town- 
ship, naming  the  company,  regiment,  battery,  battallion,  or  organization  to  which  the 
deceased  soldiers  belonged,  and  make  accurate  returns  to  the  board  of  supervisors  of 
his  county,  designating  the  name,  age,  and  sex  of  the  children  belonging  to  the  family 
of  the  deceased,  for  which  the  assessor  shall  receive  the  same  compensation  as  for 
Other  ser\'ices. 

Supervisors  to  revise. — Sec.  1036.  The  board  of  supervisors  shall  revise  said 
enumeration  list  of  orphans  from  tmie  to  time,  by  adding  thereto  or  striking  there- 
from as  they  may  deem  proper. 

Auditor  to  furnish  blanks. — Sec.  1637.  The  county  auditor  shall  furnish  to  the 
assessors  of  the  several  townships  in  his  county,  such  blanks  as  may  be  necessary  for 
taking  the  aforesaid  enumeration. 

HI.    COMPENSATION. 

The  Code  provides  for  compensation  of  the  township  assessor 
as  follows: 

SivCTION  3810.  Each  township  fissessor  shall  receive  for  cacli  day  of  eight  hours 
necessarily  engaged  in  the  discharge  of  his  official  duties,  to  be  paid  out  of  the 
county  treasury,  two  dollars. 


374  TOWNSHIP   COLLECTOR. 


CHAPTER  YI. 


TOWNSHIP   COLLECTOR. 


L     ELECTION  AND  QUALIFICATION. 

The  Code  provides  in  reference  thereto  as  follows: 

When  elected. — Section  400.  There  shall  be  elected  at  the  general  election  in  every 
year,  a  township  collector  in  and  for  each  organized  township  in  every  county,  except 
the  township  in  which  the  county  seat  is  located,  who  shall  hold  office  for  one  year; 
provided,  the  board  of  supervisors  of  the  county  shall  order  the  election  of  township 
collectors  as  in  this  chapter  hereinafter  provided. 

Qualification  of.— Sec.  401.  He  shall  qualify  as  other  elective  officers,  and  give 
a  bond  to  the  county  in  a  penal  sum  equal  to  double  the  whole  amount  of  tax  to  be 
by  him  collected,  which  shall  be  presented  to  and  approved  by  the  board  of  super- 
visors of  the  county  and  recorded  the  same  as  the  bond  of  county  officers. 

IL     POWER  AND  DUTY. 

The  provisions  of  the  Code  are  as  follows: 

Powers  of. — Section  402.  The  auditor,  in  counties  where  township  collectors  are 
elected,  shall  make  out  a  duplicate  tax-list  of  each  township,  and  deliver  the  samci 
with  the  original,  to  the  county  treasurer. 

Sec.  403.  The  county  treasurer  shall  deliver  to  each  township  collector  in  the 
county,  as  soon  as  he  has  qualified,  such  duplicate  tax-list  of  his  township,  and  take 
his  receipt  therefor,  specifying  the  total  amount  of  the  tax  charged  in  such  list,  and 
chart^e  the  same  over  to  each  township  collector,  in  a  book  to  be  kept  for  that  pur- 
pose; and  such  duplicate  tax -list,  when  so  made  out  and  delivered  to  the  township 
collectors,  may  be  used  as  an  execution,  and  shall  be  sufficient  authority  for  them  to 
collect  the  taxes  therein  charged  in  any  township  in  the  county,  by  distress  and  sale 
or  otherwise,  as  now  provided  by  law  for  the  collection  of  taxes  by  the  county  treas- 
urer; and  the  county  treasurer  shall  not  receive  or  collect  any  of  the  taxes  charged 
in  any  duplicate  tax-list  so  delivered,  except  the  tax  of  non-residents  of  the  township 
until  the  same  has  been  returned  to  him,  as  hereinafter  provided.  The  said  county 
treasurer  shall  procure  for  and  deliver  to  each  township  collector,  with  said  tax-list, 
a  tax  receipt-book,  with  a  blank  margin  or  stub,  upon  which  the  said  township  col- 
lector shall  enter  the  number  and  date  of  the  tax  receipt  given  to  the  tax-payer,  the 


POWER   AND   DUTY.  375 

amount  of  tax  and  by  whom  paid,  which  said  tax  receipt-book  shall  be  returned  to  the 
county  treasurer,  with  the  said  duplicate  tax-list  as  hereinafter  provided. 

To  give  notice. — Sec.  404.  Upon  the  receipt  of  said  tax-list,  each  township 
collector,  immediately,  shall  cause  the  notice  of  the  reception  thereof  to  be  posted  up 
in  some  conspicuous  place  in  every  school-district  in  the  township,  and  in  every 
ward  of  any  city  therein,  so  located  as  will  be  most  likely  to  give  notice  to  the 
inhabitants  thereof,  and  also  publish  such  notice  for  four  weeks  in  one  or  more 
weekly  papers,  if  any  published  in  the  township,  designating  in  such  notice  a  con- 
venient place  in  such  township  where  he  will  attend  from  nine  o'clock  A.  M.  to  four 
o'clock  p.  M.,  at  least  once  in  each  week,  on  a  day  to  be  specified  in  said  notice  until 
March  first  following,  for  the  purpose  of  receiving  payment  of  taxes,  and  each  col- 
lector shall  attend  accordingly,  and  he  shall  proceed  to  collect  and  receipt  for  all 
taxes  therein  charged,  in  the  same  manner  as  now  provided  by  law  for  the  collection 
of  taxes  by  the  county  treasurer,  and  all  the  laws  which  apply  to  and  govern  the 
collection  of  taxes  by  county  treasurers,  shall  apply  to  and  govern  the  collection  of 
taxes  by  said  township  collector,  when  not  inconsistent  with  the  provisions  of  this 
chapter. 

Demand  taxes.— Sec.  405.  Every  collector,  after  the  first  of  March  in  each  year, 
shall  call  at  least  once  on  each  person  whose  tax  remains  unpaid,  or  at  the  place  of 
his  usual  residence,  if  in  the  township  for  which  such  collector  has  been  chosen,  and 
demand  the  payment  of  the  taxes  charged  to  him  on  his  property;  in  case  anv 
person  shall  attempt  to  remove  from  the  township  property  on  which  tax  is  due 
without  leaving  sufficient  to  pay  such  tax,  at  any  time  after  the  duplicate  comes  into 
his  hands,  the  collector  shall  attach  such  property,  and  hold  the  same  until  the  tax  is 
paid,  or  make  the  tax  out  of  such  property.  In  case  any  person  shall  refuse  or 
neglect  to  pay  the  tax,  or  shall  have  removed  from  said  township,  the  collector  shall 
levy  the  same  by  distress  and  sale  of  the  goods  and  chattels  of  the  person  who  ought 
to  pay  the  same,  or  of  any  goods  and  chattels  on  which  said  tax  was  assessed  where- 
soever the  same  may  be  found  within  the  county.  The  collector  shall  give  public 
notice  of  the  time  and  place  of  sale,  and  of  the  property  to  be  sold  at  least 
six  days  previous  to  the  sale,  by  advertisements  to  be  posted  up  in  at  least 
three  public  places  in  the  township  where  sueh  sale  shall  be  made.  The  sale  shall  be 
made  by  public  auction,  and  if  the  property  shall  be  sold  for  more  than  the  amount 
of  the  tax,  penalty,  and  costs,  the  surplus  shall  be  returned  to  the  person  in  whose 
possession  such  property  was  when  the  distress  was  made. 

Make  monthly  statements. — Sec.  406.  The  township  collectors  shall  make 
monthly  statements  to  the  county  treasurer  of  the  amount  of  tax  collected  by  them 
on  each  fund,  and  pay  the  same  over  to  the  county  treasurer,  and  take  his  receipt 
therefor ;  and  they  shall  complete  the  collection  of  the  tax  charged  in  the  said 
duplicate  tax  lists,  by  distress  and  sale  or  otherwise,  on  or  before  the  first  Monday  in 
May  next  after  the  receipt  of  said  duplicate  tax  list,  and  pay  over  the  amount  so  col- 
lected to  the  county  treasurer,  and  return  to  him  the  said  tax  lists  and  receipt-books, 
and  make  a  full  and  complete  settlement  for  the  taxes  so  collected  with  the  county 
treasurer,  which  settlement  shall  be  subject  to  examination  and  correction  by  the 
board  of  supervisors  of  the  county  at  its  next  session. 

Unpaid  taxes. — Sec.  408.  After  the  return  of  said  duplicate  tax-lists  and  settle- 
ment as  provided  above,  the  county  treasurer  shall  receive,  receipt  for,  and  collect 
any  unpaid  taxes  in  the  county,  and  shall  proceed  to  advertise  and  sell  the  real 
estate  in  the  county  upon  which  the  taxes  liave  not  been  paid,  for  the  unpaid  taxes 
thereon  as  provided  by  law. 


37C  TOTN'NSIIIP   COTXECTOn. 

Failure  to  collect. — Sf.c.  408.  If  any  of  the  taxes  mentioned  in  the  tax  list  shall 
remain  unpaid,  and  the  collector  shall  not  be  able  to  collect  the  same,  he  shaU 
dehver  to  the  county  treasurer  an  account  of  the  taxes  so  remaining  due ;  and  upon 
making  oath  before  the  county  auditor,  or  in  case  of  his  absence  before  any  justice 
of  the  peace,  that  the  sums  mentioned  in  such  account  remain  unpaid,  and  that  he 
has  not,  upon  diligent  inquiry,  been  able  to  discover  any  goods  or  chattels  Vjclonging 
to  or  in  the  possession  of  the  person  charged  with  or  liable  to  pay  such  sums, 
whereon  he  could  levy  the  same,  he  shall  be  credited  by  the  county  treasurer  with 
the  amount  thereof,  but  such  oath  and  credit  shall  only  be  presumptive  evidence  of 
the  correctness  thereof. 

Liability. — Sec.  410.  Such  collector  and  his  sureties  shall  bf  liable  for  the  loss 
bv  theft  or  otherwise,  of  any  money  collected  by  him  and  in  his  possession. 

Election  of. — Sec.  411.  The  board  of  supervisors  of  each  county  in  the  state, 
having  a  population  exceeding  seven  thousand  inhabitants,  as  shown  by  the  last 
preceding  census,  are  hereby  authorized  and  empowered  to  order  an  election  of  a 
township  collector  in  each  organized  township  in  their  county,  by  a  resolution  to 
that  effect,  passed  at  their  regular  meeting  in  June  in  any  year  by  a  two-thirds  vote 
of  the  board,  which  shall  be  spread  up)on  the  records  of  the  board,  and  the  first  elec- 
tion of  township  collectors  in  such  county  shall  be  held  at  the  next  general  election 
after  the  passage  of  such  resolution,  and  every  year  thereafter  until  the  said  resolu- 
tion is  repealed  by  the  board,  by  a  like  vote,  at  their  regular  meeting  in  June  in  any 
year.  They  shall  be  voted  for  and  elected  in  the  manner  of  the  other  township  offi- 
cers, and  in  all  counties  in  the  state  where  such  resolution  is  not  in  force,  as  provided 
in  this  section,  then  sections  four  hundred  and  one  to  four  hundred  and  eleven, 
inclusive,  of  this  chapter,  shall  be  inoperative  and  of  no  effect. 

Notice   required. — The  notice   of  the   reception  of  the   list 

required  to  be  given  by  the   collector  may  be  in  the  following 

form: 

NOTICE  OF  TOWNSHIP  COLLECTOR. 
TiTo,  136. 

....  County,  Iowa,  )  eg 

....    Township.  )  ' 

To  all  whom  it  may  concern: 

Notice  is  hereby  given  that  I,  as  collector,  of  said  township 
have  received  the  tax  list  of  said  township  for  the  year  18.  .,  and 
am  ready  to  receive  the  taxes  thereon,  and  that  I  shall  be  in 
attendance  at  .  . . . ,  in  said  township  on  each  Tuesday  from  9 
o'clock,  A.  M.,  until  4  o'clock,  p.  m.  of  said  day,  until  the  first  day 
of  March  next,  for  the  purpose  of  receiving  payment  of  the  taxes 
due  on  said  tax  list. 

Dated  this  ....  day  of  . . . . ,  18 . . 

A B. . . .,  Township  Collector. 

NOTICE  OF  THE  SALE  OF  PROPERTY.  DISTRAINED    FOR  THE  PAYMENT  OP 

TAXES. 
No.  IST. 

County,  Iowa,      ) 

....    Township.   [ 
Notice  is  hereby  given  that  by  virtue  of  a  tax  list  of  said  town- 


POWEK    AND    DUTY. 


371 


ship  for  the  year  18.  .,  delivered  to  me,  the  undersigned  township 
collector  of  said  township,  I  have  seized  and  distrained  the  follow- 
ing described  property  of  C  D,  for  the  payment  of  taxes  due  on 
said  list  from  the  said  C  D,  amounting  to  8. .  .  .,  said  taxes  hav- 
in<i-  been  duly  demanded  of  the  said  C  D,  and  the  said  C  D, 
having  refused  (or  neglected,)  to  pay  the  same. 

Now  therefore,  by  reason  of  the  premises  I  shall  offer  said 
property,  to- wit:  (as  for  example,  one  white  four  year  old  cow 
and  one  red  two  year  old  steer, )  for  sale  at  public  auction  to  the 
highest  bidder  for  cash,  at  .  .  . . ,  in  said  township  on  the  ....  day 
of  . .  . . ,  18 . . ,  at  10  o'clock,  a.  m.  of  said  day,  to  satisfy  the  amount 
of  said  taxes,  penalty  and  costs. 

Dated  this  ....  day  of  . . . . ,  18 . . 

A. . . .   B. . .  .,  Township  Collector. 


MONTHLY   STATEMENT  OF  COLLECTOR. 
No.  158. 

Monthly  statement  of  taxes  collected  hi  the  mouth  of  ...., 

1^.  .^by  A B ,  collector  of  ... .  township, county, 

Iowa. 


Dollars.  Cents. 

1  Dollars. 

Cents. 

Polls • 

School  House   Dist  No.    2 

Consolidated  .    . 

School  House   Dist  No     3 

•    •    • 

School  House .  . 

School  House,  Dist.  No.    4,  . 

Railroad  .... 

Road 

School  House   Dist  No     7 

School  House   Dist  No.    8, 

Total 

Total 

B. 


Collector  of 

. .    Totonshlp. 


FINAL  STATEMENT  OF  COLLECTOR'S  ACCOUNT. 
No.  1.50. 

A... .  7? .... ,  Collector,  etc.,  in  account  with  ....  county,  Iowa. 


1S74. 


ian. 
eh. 

March 
April 
May 
May 


DR. 


To  tax  list  Fairview   township 

By  amount  of  taxes  collected  and  paid  county  treasurer  . 
Hy  amount  of  taxes  collected  and  paid  couniy  treasurer  . 
By  amount  of  taxes  collected  and  paid  county  treasurer  . 
By  amount  of  tax'-s  collected  and  pairl  county  treasurer  . 
By  amount  of  taxes    remaining  uncollected 


$9121  00 


Or. 


gSO.5  00 
l;'i(l(l  00 
2070  76 
4540  «5 
114  30 


$0121  00  50121  00 


378  TOWNSHIP   COLLECTOR. 

Affidavit  required. — If  any  of  the  taxes  on  the  tax-list 
remain  unpaid,  and  the  collector  shall  not  be  able  to  collect  the 
same,  he  shall  deliver  to  the  treasurer  an  account  of  the  taxes  so 
remaining  due,  and  he  is  required  to  make  oath  that  the  sums 
mentioned  in  such  account  remain  unpaid,  and  that  he  has  not 
upon  diligent  inquiry  been  able  to  discover  any  goods  or  chattels 
belonging  to  or  in  the  possession  of  the  person  charged  Avith,  or 
liable  to  pay  such  sums,  vehereon  he  could  levy  the  same,  he  shall 
be  credited  with  the  amount  thereof.     ( 'ode,  Sec.  409. 

The  affidavit  may  be  in  the  following  form: 


AFFIDAVIT  OF  UNPAID  TAXES. 
No.   160. 
State  op  Iowa,    ) 
County.  ) 

I,  A  B,  collector  of  ....  township,  in  said  county,  being  duly 
sworn,  depose  and  say  that  the  foregoipg  account  Avith  .... 
county,  is  just  and  true,  that  the  amount  of  taxes  of  said  town- 
ship unpaid  is  as  therein  stated,  that  the  annexed  tax-list  of  said 
township  shows  the  amount  of  said  unpaid  taxes,  and  the  persons 
from  whom  due,  (except  non-residents,)  amounting  to  iS  ...  ;  that 
I  have  not  been  able  to  discover  any  goods  or  chattels  belonging 
to  or  in  the  possession  of  the  persons  charged  with,  or  liable  to 
pay  said  upaid  taxes  and  sums  whereon  I  could  levy  the  same. 

Subscribed  and  sworn  to  this  ....  day  of  .  . . .,  18. .,  by  the 
said  A  B,  before  me. 

. . . .,  Auditor  of  said  county. 

(Or,  in  the  absence  of  the  Auditor,  before  some  Justice  of  the 
Peace.) 

The  tax-list  his  justification.— The  tax  list  is  a  complete 
justification  to  the  collector  to  seize  property  when  required  for 
the  payment  of  the  taxes,  the  same  as  property  is  taken  by  virtue 
of  an  execution. 

Cannot   distrain    property  exempt. — The  collector  is 

not  authorized  to  distrain  property  exempt  from  execution,  and 
his  liability  in  such  a  case  would  be  the  same  as  the  sheriff's  who 
should  seize  exempt  property  by  virtue  of  an  execution. 


FEES    AND    COMPENSATION.  379 

III.     FEES  AND  COMPENSATION. 
The  Code  provides  as  follows: 

Sec.  407.  Each  township  collector  shall  receive  for  his  services  the  following 
compensation : 

1.  Two  per  cent,  of  all  sums  collected  by  him  on  the  first  thousand  dollars,  and 
one  per  cent,  on  all  sums  in  excess  thereof  collected  by  him  otherwise  than  by  dis- 
tress and  sale,  to  be  paid  out  of  the  county  treasury  ; 

2.  Five  per  cent,  upon  all  taxes  collected  by  him  by  distress  and  sale,  which  per- 
centage and  costs  shall  be  collected  of  the  delinquent  tax-payer,  and  the  same  fees  in 
addition  to  the  said  five  per  cent,  as  constables  are  entitled  to  receive  for  the  sale  of 
property  on  execution. 


380  OFFICERS   DK  JURE   AND   DE  FACTO. 


OHAPTEK  YIL 


OFFICERS  DE  JURE  AND  DE  FACTO. 

An  officer  de  jure. — An  officer  dc  jure  is  one  who  not  only- 
acts  as  an  officer  in  fact,  but  who  has  an  absolute  and  indefeasa- 
ble  right  to*  the  office. 

An  officer  de  facto. — An  officer  de  facto  is  one  who  is  act- 
ing under  color  of  an  election  or  appointment  not  strictly  legal, 
or  without  having  qualified  by  the  requisite  tests,  or  by  holding 
over  after  the  period  prescribed  for  a  new  appointment.  2  Kent, 
(8  ed.),  345. 

He  is  one  who  exercises  the  duties  of  an  office  under  a  claim 
and  color  of  right;  being  distinguished  on  the  one  hand  from  a 
mere  usurper,  and  on  the  other,  from  an  officer  de  jure.  Black. 
T.  T.  (3  ed.),  92;  Burrell's  Law  Die.  Tit.  De  facto. 

The  mere  claim  to  be  a  public  officer,  or  the  performance  of  a 
single  or  any  number  of  acts  in  that  character,  will  not  constitute 
any  officer  de  facto;  there  must  be  some  color  to  the  claim  under 
an  election  or  appointment,  or  an  exercise  of  official  functions,  or 
an  ao(iuiescence  on  the  part  of  the  public  for  a  length  of  time 
which  would  afford  a  strong  presumption  of  a  colorable  right.  Id. 

He  mnst  have  the  form  of  election  or  appointment.— 

He  must  be  one  who  comes  in  by  the  form  of  an  election  or 
appointment,  and  who  thus  acts  under  claim  and  color  of  right, 
but  who  in  consequence  of  some  informality,  omission  or  want  of 
qualification  could  not  hold  his  office,  if  his  right  was  tried  in  a 
direct  proceeding  in  the  nature  of  a  qtio  warranto.    IG  Iowa,  377. 

The  color  of  right  need  not  be  perfect.— It  is  not  neces- 
sary that  there  be  color  of  an  election  or  appointment  by  the 


OFFICERS  DE  JURE  AND  DE  FACTO.  381 

only  power  "which  has  the  right  to  elect  or  appoint.  38  Conn., 
449,  S.  C;  9  Am.  Rep.,  409. 

His  acts  cannot  be  assailed  collaterally. — The  acts  of 

an  officer  d<i  fd'-to  cannot  lie  assailed  collaterally;  and  where  a 
notary  public  was  duly  appointed  by  the  executive,  but  failed  to 
file  a  bond  in  the  manner  prescribed  by  law,  it  was  held  that  he 
was  an  officer  defacto^  but  not  de  jure,  and  that  his  acts  in  taking 
depositions  in  a  cause  were  lawful  so  far  as  third  parties  were 
concerned  and  could  not  be  attacked  cellaterally.     14  Iowa,  464. 

There  must  be  an  office.— Before  one  can  be  a  de  facto 
officer,  there  must  be  a  law  creating  the  office.  Tne  office  must 
be  one  de  jurej  the  officer  may  then  be  one  de  facto.  25 
Iowa,  12. 

A  recent  decision  illustrating^  fine  distinctions. — A 

recent  decision  of  the  Supreme  Court  of  Iowa  illustrates  the  law 
on  the  subject  of  officers  de  facto,  and  the  nice  distinctions  some- 
times made  in  exposition  of  the  law  relating  thereto.  As  this 
decision  is  not  yet  published,  we  give  place  to  it  here,  with  the 
dissenting  opion  of  Judge  Cole,  taken  from  the  Western  Jurist 
of  June,  1874,  decided  at  the  April  Term,  18T4: 

BAILEY  V.  FISHER. 
Appeal  from    jfones  District   Court. 

1.  Assessment  ;  Election  of  Assessor.— The  town  of  A.  is  in  F.  township.    At  a 

general  election  the  people  of  F.  Tp.  elected  two  assessors,  one  for  A.  and  the 
other  for  F.  The  town  assessor  was  not  chosen  at  a  municipal  election.  The 
assessor  chosen  for  the  town  assessed  land  outside  the  borders  of  the  town. 
For  several  years  it  had  been  the  custom  of  assessors  of  that  town  to  assess  such 
land.    Held,  that  the  assessment  was  void. 

2.  Officer  de  facto. — In  order  to  support  the  acts  of  one,  on  the  ground  that  he 

is  a  de  facto  officer,  they  must  have  been  done  under  color  of  the  office,  the 
duties  of  which  must  have  been  assumed  and  discharged  by  the  yierson  claiming 
to  fill  the  office. 

Action  in  equity  to  set  aside  a  tax  deed  to  defendant  for  land 
of  plaintiff,  pn  the  ground  that  the  lands  were  sold  for  taxes  with- 
out having  been  legally  assessed.  A  preliniiiiary  iiijunclioii  was 
allowed  restraining  defendant  from  the  sale  of  the  land  and  from 
disposing  of  the  timber  thereon.  A  motion  to  dissolve  the  injunc- 
tion was  overruled  and  from  this  judgm(!iit  of  the  court,  defendant 


382  OFFICERS   I>E  JURK   AND    T)E  FACTO. 

appeals.     The  facts  of  the  case  involved  in  the  questions  of  law 
decided,  are  found  in  tlie  opinion. 

Beck,  C.  J.  The  facts  of  the  case  are  as  follows:  The  land 
in  controversy  is  situated  in  Fairview  Township,  .Tones  county, 
and  was  sold  for  taxes  of  18G7  to  defendant  and  a  deed  was  made 
therefor.  As  the  law  then  stood,  in  addition  to  township  assess- 
ors, there  was  chosen  by  each  incorporated  town  at  its  municipal 
election,  an  assessor  who  listed  all  property  within  its  limits. 
The  township  assessors  were  elected  at  the  general  election  for 
State  and  county  oflScers.  Acts  9th  Gen.  Assembly,  Chap.  173, 
§  2,  Acts  10th  Gen.  Assembly,  Chap.  2G,  §  2.  The  incorporated 
town  of  Anamosa  is  in  Fairview  township — at  the  general  elec- 
tion of  1866  one  Arnold  was  elected  Assessor  of  Fairview  town- 
ship, and  one  Dott,  at  the  same  election,  and  not  at  a  municipal 
election,  was  chosen  Assessor  of  Anamosa,  and  gave  bond  and 
took  the  oath  of  office  as  required  by  law.  It  appears  that  both 
of  these  assessors  were  voted  for  by  all  the  electors  of  the  town- 
ship, including  those  who  lived  within  the  limits  of  the  town  of 
Anamosa.  The  Wajosipinecon  river  divides  the  township.  Ana- 
mosa is  in  that  part  of  the  territory  lying  north  of  the  river.  The 
land  in  controversy  is  a  considerable  distance  from  the  town. 
From  1863  until  after  the  assessment  of  the  taxes  in  question,  it 
was  the  custom  of  the  assessor  of  Anamosa  to  list  the  lands  north 
of  the  river  and  lying  without  the  town.  The  other  part  of  the 
township  was  assessed  by  the  township  assessor.  No  question 
seems  to  have  been  raised  during  this  time  as  to  the  regularity  of 
such  assessments,  which  were  made  under  a  misapprehension  of 
the  law.     The  plaintiff  is  a  non-resident  of  the  State. 

The  only  question  we  are  called  upon  to  decide  is  this:  Was 
the  assessment  of  the  land  in  1867  by  Dott,  the  assessor  of  Ana- 
mosa, valid? 

While  the  election  of  Dott  was  irregular  he  may  be  regarded 
as  the  assessor  de  facto  of  the  town  of  Anamosa,  and  all  his  acts 
as  such  within  the  limits  of  his  official  powers  are  valid,  so  far  as 
they  involve  the  interests  of  third  persons  and  the  public. 

Dott,  as  the  assessor  of  Anamosa,  listed  lands  of  the  township 
including  the  tract  in  controversy;  he  did  not  assess  them  as  the 


OFFICERS   BE  JUKE   AND   DE  FACTO.  383 

township  assessor  and  it  is  not  claimed  that  he  acted  as  such. 
"We  then  have  the  simple  case  of  one  officer  performing  an  act 
which  the  law  requires  of  another,  without  claiming  or  assuming 
his  functions.  The  question  does  not  arise  whether  Dott  was  de 
facto  assessor  of  Fairview  township.  He  did  not  act  as  such  nor 
assume  the  duties  of  that  oiF.ce.  He  simply  performed  acts  in  his 
official  capacity  as  assessor  of  Anamosa,  which  the  law  required 
another  oflBcer  to  do.  The  discussion  upon  the  point  made  by 
defendant's  counsel,  that  Dott  was  the  assessor  de  facto  and  his 
acts  are  therefore  valid,  does  not  apply  to  the  facts  of  the  case. 
Had  Dott  made  the  assessment  as  the  assessor  of  Fairview  town- 
ship, the  arguments  of  counsel  on  this  point  would  be  applicable 
to  the  case.  Biit  the  distinction  between  such  a  case  and  the  one 
before  us  is  obvious. 

It  is  not  claimed  that  where  an  officer  de  ,pire  or  de  facto 
assumes  duties  not  imposed  upon  him  by  law,  and  which  pertain, 
under  the  law,  to  another  officer,  that  in  such  a  case,  his  acts  are 
valid  on  the  ground  that  he  is  an  officer  de  facto.  We  have  seen 
no  authority  supporting  such  a  rule.  Yet  this  is  the  precise  case 
before  us. 

In  order  to  support  the  acts  of  one  on  the  ground  that  he  is  a 
de  facto  oflBcer,  they  must  have  been  done  under  color  of  the  office, 
the  duties  of  which  must  have  been  assumed  and  discharged  by 
the  person  claiming  to  fill  the  office.  This  we  think  is  essential 
to  give  one  the  character  of  an  officer  de  facto  and  render  his  acts 
valid.  These  views  we  think  are  not  contested  by  appellant's 
counsel  and  are  certainly  in  accord  with  all  the  authorities  to 
which  we  have  been  referred. 

The  fact  that  Dott  made  the  assessment  under  a  custom  extend- 
ing his  powers  and  duties  in  a  manner  and  to  subjects  unauthor- 
ized by  law,  which  was  acquiesced  in  by  the  officer,  charged  with 
such  duties  cannot  make  liis  acts  valid.  Customs  of  this  kind 
cannot  abrogate  the  law.  Neither  can  it  be  pretended  that  a 
mistaken  idea  as  to  the  extent  of  the  powers  and  duties  of  an 
oflBcer,  though  honestly  entertained  by  himself  and  tlie  people, 
will  validate  acts  done  in  excess  of  his  authority. 


384  OFFICERS    DE  JUUE    AND    DE  FACTO. 

We  are  of  the  opinion  that  the  assessment  by  Dott  was  a  nul- 
lity, and  that  the  tax  sale  for  this  reason  is  void. 

The  judgment  of  the  District  Court  in  overruling  the  motion  to 
dissolve  the  injunction  is  therefore  Affirmed. 

Cole,  J.,  dissenting. 

Cole,  J.,  dissenting.  It  seems  to  me  that  Dott  was  the 
assessor  de  facto  of  the  territory  actually  assessed  by  him;  and 
that  the  distinction  sought  to  be  made  by  the  foregoing  opinion, 
respecting  the  name  under  which  he  assumed  to  act,  has  no  foun- 
dation in  principle,  and  it  certainly  has  no  support  in  precedent. 
True,  he  was  denominated  the  Assessor  for  Anamosa,  and  was 
elected  by  the  voters  of  the  entire  township  of  Fairview;  while 
another,  elected  by  the  same  voters,  was  styled  the  assessor  of 
Fairview  township.  Each  was  an  assessor  dc  jure  within  and  for 
the  territory  indicated  by  his  title,  notwithstanding  illegal  votes 
mav  have  been  cast  at  their  election.  Any  mere  irregularity  or 
collateral  illegality  in  an  election,  does  not  change  the  character 
of  an  officer  de  jure.,  into  one  de  f<i<-to.,  merely.  If  the  election 
or  appointment  was  wholly  without  authority,  then  such  would  be 
its  effect.  The  People  v.  White,  24  Wend.  520;  Cooke  v.  Halsey, 
IG  Peters,  71;  The  State  v.  Bloom,  17  Wis.  521;  The  .State  v. 
Westmore,  14  Wis.  1G.3;  Laver  v.  McGlachlin,  28  Wis.  .304;  The 
Commonwealth  v.  McCoinbs,  50  Penn.  St.  43G;  Brown  v.  O'Con- 
nell,  3G  Conn.  432. 

Although  Dott  was  elected  by  the  voters  living  within  the  ter- 
ritory north  of  the  river,  and  outside  the  limits  of  Anamosa,  j^et 
as  to  that  territory  he  was  assessor  de  farto^  because  thay  had 
no  authority  to  elect  him.  He  did,  however,  exercise  the  duties 
of  the  office  of  assessor  over  that  people  and  territory,  and  there 
has  been  such  a  continued  acquiescence  on  the  part  of  the  public 
as  does  afford  presumption  at  least  of  a  colorable  election  or 
appointment.  This  constitutes  him  an  officer  de  facto.  Wilcox 
V.  Smith,  5  Wend.  2;)1 ;  ex  parte  Strong,  21  Ohio  St.  GIO;  Carle- 
ton  V.  The  People,  10  Mich.  250;  Kimball  v.  Alcorn,  45  Miss- 
151;  Brown  v.  Lunt,  37  Me.  423;  Gilliam  v.  Keddick,  4  Ind. 
3G8.  The  fact  that  another  person  was  an  assessor  de  jure  for 
that  people  and  territory,  would  not,  of  itself,  and    without  any 


OFFICERS  DE  JURE  AND  KE  FACTO.  385 

claim  by  him  to  exercise  the  office,  defeat  the  character  or  color- 
able title  of  the  assessor  de  facto.  Very  many  de  facto  officers 
would  cease  to  be  such,  and  the  public  be  deprived  of  the  protec- 
tion afforded  by  their  acts,  if  this  was  the  rule.  For  instance,  at 
an  election  to  fill  a  vacancy  in  the  office  of  justice  of  the  peace, 
sheriff,  or  judge,  the  contest  is  close,  and  the  certificate  of  elec- 
tion is  given  to  one,  and  he  enters  at  once  upon  the  exercise  of 
the  duties  of  his  office;  while  the  opposing  candidate  contests 
the  election,  and  is  successful.  vVccording  to  the  above  opinion, 
the  occupant  of  the  office  under  the  certificate  of  election,  could 
not  be  held  to  be  an  officer  de  facto  while  he  was  acting,  because 
there  was  another  person  who  was  at  the  same  time  such  officer 
dejure.  This,  it  seems  to  me,  demonstrates  the  error  of  the 
opinion.  The  very  idea  of  an  officer  de  facto^  carries  with  it 
much  of  an  implication  that  another  has  the  legal  right  to  the 
office.  And  it  also  appears  to  me  that  the  fact  that  Dott  was 
styled  the  assessor  for  Anamosa,  cannot  defeat  the  public  right 
to  the  protection  usually  afforded  by  the  acts  of  an  officer  de 
facto.  To  so  hold  would  be  to  give  to  the  name  of  an  office,  the 
power  to  limit  and  control  its  duties.  He  was  the  assessor  in  fact 
of  the  territory  outside  of  Anamosa,  and  was  so  recognized  and 
accepted  by  the  public,  and  no  other  person  claimed  to  exercise 
the  duties  of  that  office.  It  is  this  fact  character,  and  not  the 
name  he  bore,  nor  the  technical  legal  right  in  another,  which 
affords  the  protection  to  the  public. 

In  the  recent  case  of  The  State  v.-  (/arroll,  38  Conn.  449  S.  C. 
9  Am.  Rep.  409,  the  question  respecting  an  officer  de  facto., 
underwent  a  thorough  examination,  and  it  was  held.,  that  an  offi- 
cer de  facto  is  one  whose  acts,  though  not  those  of  a  lawful  officer, 
the  law,  upon  principles  of  policy  and  justice,  will  hold  valid  so 
far  as  they  involve  the  interests  of  the  public  and  third  persons, 
where  the  duties  of  the  office  were  exercised: 

J'irxt.     Witliout  a  known   appoifitnient  or  election,  but  under 
such  circumstances  of  reputation   or  acquiescence  as  were  calcu- 
lated to  induce  peoj)le,  without  intiuiry,  to  submit  to   or  invoke 
his  action,  supposing  him  to  })e  the  olficor  h((  assumed  to  be. 
/Second.     Under  color   of  a   known    and  valid  iippoiiitiiiiMit  or 
25 


386  OFFICERS   DE  JURE   AND   DE  FACTO. 

election,  but  when  the  ofBcer  had  failed  to  conform  to  some  pre- 
cedent, requirement  or  condition,  as  to  take  an  oath,  give  a  bond, 
or  the  like. 

Third.  Under  color  of  a  known  election  or  appointment,  void 
because  the  officer  was  not  eligible,  or  because  there  was  a  want 
of  power  in  the  electing  or  appointing  body,  or  by  reason  of 
some  defect  or  irregularity  in  its  exercise,  such  ineligibility,  want 
of  power  or  defect  being  unknown  to  the  public. 

Fourth.  Under  color  of  an  election  or  appointment  by  or  pur- 
suant to  a  public  unconstitutional  law,  before  the  same  is  adjuded 
to  be  such. 

According  to  this,  or  any  other  case  we  have  seen,  the  above 
opinion  does  not  appear  to  be  well  grounded.  For  these  reasons  I 
dissent;  but  a  majority  say  the  opinion  shall  stand,  and  the  judg- 
ment be  Affirmed. 


APPENDIX. 


Grenei'al  Su^ii\e^^   i^oi^^. 


APPENDIX.  389 


APPENDIX. 


GENERAL  BUSINESS  FORMS. 


PROMISSORY  NOTE. 
No.  161. 

....    days  after  date,  for  value  received,  I  promise  to  pay 

John  Doe  or  oi:der  (or  bearer,)  ....  dollars,  with    per  cent 

interest  from  date. 

mdiard  Hoe. 

Iowa  City,  Iowa,  April  1,  1866. 

PROMISSORY  NOTE. 
No.   162. 

$  ...  ,  Iowa, ,18.. 

....  after  date  . .  promise  to  pay or  order,  ....  dollars 

at  ....,  Iowa,  with    ....    per  cent   interest   from    ....payable 
annually — value  received. 


PROMISSORY  NOTE  WITH  ATTORNEY'S  FEES. 
No.   163. 

$ ,  Iowa, ,  18 .  . 

....  after  date,  for  value  received,  . .  promise  to  pay  to  the 
order  of  . . . . ,  ....  dollars.  Payable  at  ....  bank,  with  interest 
at  ten  per  cent  from  ....      Interest  payable  . .  .annually. 

It  is  also  stipulated  that  should  the  collection  of  this  note  be 
inforced  by  law  . .  j)er  cent  shall  be  allowed  as  attorney's  fees, 
and  taxed  with  the  costs  in  the  cause. 


CONTRACT   NOTE. 
>ro.  164. 

$.  .  .  .  . . .  .,  Iowa,  .  .  .  .,  18. . 

For  value  received,  on  or  before  the  ....  day  of  ....  next,  . . 

promise  to  pay  ...  or  order,  . . .  dollars,  payable  at  . . .,  with  ten 


390  APPENDIX. 

per  cent  interest  per  annum,  until  paid,  and  a  reasonable  sum  addi- 
tional as  attorney's  fees,  if  collected  by  suit.  Consent  is  hereby 
<riven  that  any  Justice  of  the  Peace  may  have  jurisdiction  on  this 
note  to  an  amount  not  exceeding  three  hundred  dollars.  And  it 
is  further  agreed  that  the  title  to  the  .  .  .,  for  which  this  note  is 
given,  shall  remain  in  said  .  .  .  .,  until  this  note  is  fully  paid.  For 
the  purpose  of  obtaining  credit,  . .  certify  that  .  .  own  in  .  .  .  own 
name  ....  acres  of  land,  with  ....  acres  improved,  worth  § .  .  .  . 
over  all  incumbrances;  .  .  own  $.  . .  .  worth  of  personal  property 
over  and  above  all  indebtedness. 

Witness,  ....  

P.  q 

Residence,  ....  


FORM  OF  DBAFT. 
]Sro.  165. 

f . . . .  . . . .,  Iowa,  . . . .,  18. . 

. . . .,  pay  to  the  order  of ,   ....  dollars.     Value  received. 

And  charge  the  same  to  the  account  of  .... 

To  ... . 

WARRANTY  DEED. 
No.  166. 

Know  all  men  hy  these  presents:  That  ....,  of  ....  county, 
State  of  .  .  . .,  in  consideration  of  the  sum  of  ...  .  dollars,  in  han(l 
paid  by  . . . .,  of  ....  county,  and  State  of  . .  .  .,  do  hereby  sell 
and  convey  unto  the  said  .  .  . . ,  the  following  described  premises, 
situate  in  ....  county,  Iowa:       [here  describe  the  premises.] 

And  ....  do  hereby  covenant  with  the  said  ....  that  ....  law- 
fully seized  in  fee  simple  of  said  premises,  and  that  they  are  free 

from  incumbrance,  that ha. .  good  right  and  lawful  authority 

to  sell  and  convey  the  same,  and  ....  do  hereby  covenant  to 
warrant  and  defend  the  said  premises  and  appurtenances  thereto 
belono-ing,  against  the  lawful  claims  of  all  persons  whomsoever, 

and  the  said hereby  relinquishes  all  her  right  of  dower  in 

and  to  the  above  described  premises.  

Signed  the day  of ,  A.  D.  18 .  .  

In  presence  of  

ACKNOWLEDGEMENT  TO  DEED. 
No.  167. 

State  of   Iowa,      ) 
County,       \ 

On  this day  of ,  A.  D.  18 .  . ,  before  me ,  in  and 

for  said  county,  personally  came  .  .  . . ,  to  me  personally  known  to 
be  the  identical  person,  whose  name.  . .  affixed  to  the  foregoing 
deed  as  grantor.,  and  acknowledged  the  execution  of  the  same 
to  be  ....  voluntary  act  and  deed. 

Witness  my  hand  . . . . ,  the  day  and  year  above  written. 


APPENDIX.  391 

QUIT  CLAIM  DEED. 
No.  168. 

Know  all  men  hy  these  Presents  : 

That ,  of  the  county  of  . . . . ,  and   State   of ,  for  the 

consideration  of  the  sum  of  ....  dollars  in  hand  paid,  do  hereby 
quit  claim  unto  . . . . ,  of  . .  .  .  county,  State  of  . . .  . ,  all  ....  right, 
title  and  interest  in   and  to   the   following  described  real  estate, 

situate    and  lying  in county,  and  State  of ,  viz:     [here 

describe  the  premises],  and  the   said    ....    releases  all right 

of  dower  in  and  to  the  above  described  premises. 

Witness hand.,  this  the     . . .  day  of ,  A.  D.  18. . 

Attest:  

[Acknowledge  same  as  in  last  form.] 


MORTGAGE-SHOET  FORM. 
No.  169. 

This  indenture,  made  on  the  . .  day  of  . . .  ,  A.  D.  18. .,  between 

,  of  the  first  part,  and  . . .  . ,  of  the  second  part,  Witnesseth, 

that  the  said  part. .  of  the  first  part,  for  the  consideration  of  .... 
dollars,  the  receipt  whereof  is  hereby  acknowledged,  do.,  by 
these  presents,  grant,  bargain,  sell  and  convey  unto  the  said 
part...  of  the  second  part,  ....  heirs  and  assigns  forever,  the 
following  described  tract  of  real  estate,  lying  and  being  situated 
in  the  county  of  . . . .,  and  State  of  Iowa,  to- wit:  [here  describe 
the  land]. 

The  intention  being  to  convey  hereby  an  absolute  title  in  fee 
simple,  including  all  the  rights  of  homestead,  to  have  and  to  hold 
the  premises  above  described,  with  all  the  appurtenances  thereto 
belonging,  unto  the  said  second  party,  and  to  ....  heirs  and 
assigns  forever. 

Provided  always^  and  these  presents    are  upon  the   express 

condition,  that  if    the  said    ,    ..    heirs,   executors,   or 

administrators,  shall  pay  or   cause   to  be   paid   to  the  said    .... 

. . . . ,  . .  executors,  administrators  or  assigns,  the  sum  of 

....    dollars,  on  the  ....  day  of  . .  . . ,  18 . . ; 

....    dollars,  on  the  ....  day  of  ....,!&..; 

....    dollars,  on  the  ....  day  of  . . . . ,  18 . . ; 

with   interest   thereon    ....    according  to  the  tenor  and  effect  of 

the  promissory  note  of   the   said    ,  bearing   even  date 

with  these  presents,  then  these  presents  to  be  void,  otherwise  to 
be  and  remain  in  full  force 

And  the  said     hereby  relincpiishes  her  ri<^ht  of  dower 

to  the  premises  hereby  conveyed. 

In  witness  whereof,  the  said  part.  .  of  tluj  first  ))art  ha.  .  here- 
unto set  his  hand  and  seal  tlu;  date  first  above  written. 

Acknowledgment  same  as  No.  107.  


392  APPENDIX. 

MORTGAGE  WITH   STIPULATIONS. 
2Sro.  ITO. 

This  indenture   made   on  the    ....  day  of    ....,  A.   D.    18.., 

between ,  of  the  first  part,  and  ....      . . . ,  of  the  second 

part,  witnesseth,  that  the  said  part. .  of  the  first  part,  for  the  con- 
sideration of  ... .  dollars,  the  receipt  whereof  is  hereby  acknowl- 
edged, do  by  these  presents  grant,  bargain,  sell  and  convey  unto 
the  said  ])arty  of  the  second  part,  .  .  heirs  and  assigns  forever, 
the  following  described  tract  of  real  estate,  lying  and  being  sit- 
uated in  the  county  of  ....,  and  State  of  Iowa,  to-wit:  [here 
describe  the  land.J 

The  intention  being  to  convey  hereby  an  absolute  title  in  fee- 
simple,  including  all  the  rights  of  homestead,  to  have  and  to  hold 
the  premises  above  described,  with  all  the  appurtenances  thereto 
belonging  unto  the  said  second  party,  and  to  . .  heirs  and  assigns 
forever. 

Provided  ahcays,  and  these  presents  are  upon  the  express  con- 
dition, that  if  the  said heirs,  executors,  or  adminis- 
trators shall  pay  or  cause  to  be  paid  to  the  said execu- 
tors, administrators,  or  assigns,  the  sum  of 

....  dollars,  on  the  ....  day  of  .  .  .  .,  18..; 
....  dollars,  on  the  ....  da3^  of  . .  . .,  18. . ; 
....    dollars,   on  the      .  . .  day  of   .  .  . . ,  18.  . ; 

with  interest  thereon    ....  accoi'ding  to   the  tenor  and  effect  of 

the  .  .  promissory  note  of  the  said    ,  bearing  even  date 

with  these  presents,  then  these  presents  to  be  void,  otherwise  to 
be  and  remain  in  full  force,  but  in  case  of  default  of  the  said  first 
party  to  pay  either  of  said  notes  when  due,  all  of  said  notes  shall 
become  due  immediately,  and  shall  be  considered  as  due  from 
and  after  the  date  of  such  default,  anything  expressed  in  said 
notes  to  the  contrary  notwithstanding.  It  is  expressly  stipulated 
and  agreed  that  the  said  first  party  shall  pay  ail  taxes  levied  on 
said  premises,  and  shall  keep  the  buildings  on  the  same  insured 
in  some  good  and  reliable  insurance  company  for  the  Ijenefit  of 
said  second  party,  to  the  extent  of  his  mortgage  interest  therein; 
and  in  case  of  .  . .  failui-e  so  to  do,  the  said  second  party  may  pay 
such  taxes  and  insure  said  buildings,  and  all  money  paid  therefor 
shall  bear  ten  per  cent,  interest  from  the  date  of  such  payment, 
and  shall  be  considered  as  a  part  of  the  sum  secured  by  this 
mortgage.  It  is  further  agreed  that  in  case  of  foreclosure  of  this 
mortgage  the  said  first  party  shall  pay  ten  per  cent,  additional  as 
attorney's  fees  therefor,  which  shall  be  taxed  in  as  costs  in  said 
foreclosure  suit. 

And  the  said hereby  relinquishes  her  right  of  dower 

to  the  premises  hereby  conveyed. 

In  witness  whereof  the  said  party  of  the  first  part  ha.,  hereunto 
set  . .  hand  and  seal  the  date  first  above  written. 

[Sign,  and  acknowledge  same  as  in  No.  167.] 


APPENDIX.  393 

CHATTEL  MORTGAGE. 

Know  all  menhy  these  presents:  That  I,   ,  of  the 

county  of  .  .  .  . ,  and  State  of  . .  . . ,  in  consideration  of  the  sum  of 

....  dollars  to  me  in  hand  paid,  by ,  of  ,  . , . ,  party  of 

the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
have  bargained  and  sold,  and  by  these  presents  do  grant  and 
convey  unto  the  said  party  of  the  second  part,  his  heirs,  assigns, 
etc.,  the  following  described  goods  and  chattels,  to-wit:  [here 
describe  the  property].  To  have  and  to  hold  the  same  forever; 
and  I,  the  said  party  of  the  first  part,  will  forever  warrant  and 
defend  the  same  against  all  persons  whomsoever;  upon  condition, 

however,  that  if  the  said  ....   ....  shall  pay  to  the  said , 

his  heirs,  assigns,  etc.,  his  promissory  notes,  dated  ....  and 
described  as  follows,  to-wit: 

One  for    ....  dollars,  payable  . .  . . ,  18 . . ; 

One  for   ....  dollars,  payable    . . . . ,  18 .  . ; 

And  one  for    ....  dollars,  payable   .  . . . ,  18 . . ; 

(Or  if  to  secure  the  delivery  of  property,  or  future  advances,  or 
an  account,  so  state),  with  interest  at  the  rate  of  . .  per  cent,  per 
annum,  according  to  the  tenor  thereof,  then  these  presents  to  be 
void,  otherwise  in  full  force. 

And  I,  the  said   ....   '....,  do   hereby  covenant  and  agree  to 

and  with  the  said     ,  that  in  case  of  default  made  in  the 

payment  of  the  above  mentioned  promissory  notes,  or  in  case  of 
my  attempting  to  dispose  of,  or  remove  from  the  said  county  of 
....  the  aforesaid  goods  and  chattels,  or  any  part  thereof,  or 
whenever  the  said  mortgagee  shall  choose  so  to  do,  then  and  in 
that  case  it  shall  be  lawful  for  the  said  mortgagee  or  his  assigns, 
by  himself  or  agent,  to  take  immediate  possession  of  said  goods 
and  chattels,  wherever  found,  the  ])ossession  of  these  presents 
being  his  sufficient  authority  therefor,  and  to  sell  the  same  at 
public  auction,  or  so  much  thereof  as  shall  be  sufficient  to  pay 
the  amount  due,  or  to  become  due,  as  the  case  may  be,  with  all 
reasonable  costs  pertaining  to  the  taking,  keeping,  advertising, 
and  selling  of  said  property.  The  money  remaining,  after  pay- 
ing said  sums,  if  any,  to    be   paid  on  demand  to  the  said  l)arty  of 

the  first  part.     Said  sale  to  take  ])lace ,  in  the  county  of 

....,and  State  of  Iowa,  after  givincr  at  least  ten  days' notice 
thereof,  by  posting  up  written  notices  in  three  public  places  in 
said  county. 

And  I  hero})y  further  authorize  the  person  conducting  said  sale, 
to  adjourn  the  saiiu;,  if  deeuHMl  in  his  opinion  nec(!ssary,  from 
time  to  time  until  the  said  })roporty  be  sold,  and  to  give  a  l)il!  of 
sale  to  the  purchaser  thereof,  which  shall  be  (lonclusive  as  to  the 
regularity  of  all  th(;  proceedings  connected  herewith,  and  convoy 
a)).solutely  all  of  my  right  and   title  therein.     Jf  from  any  cauae 


394  APPENDIX. 

said  property  shall  fail  to  satisfy  said  debt,  interest,  costs  and 
charo;es,  I  covenant  and  agree  to  pay  the  deficiency. 

Witness  my  hand  and  seal  this     .  .  .  day  of  .  .  . . ,  18 .  . . 

[Sign  and  acknowledge  same  as  No.  1G7,  except  in  the  acknowl- 
edgment say  "  foregoing  instrument  in  writing,"  in  the  place  of 
"foregoing  deed  as  grantor."] 


SATISPACTIOX  OF  MORTGAGE. 

No.  irs. 

I,  A  B,  of  the  county  of  . .  . .,  and  State  of  . .  . .,  do  hereby 
certify  that  a  certain  mortgage  bearing  date  the  ....  day  of  . .  .  . , 
A.  D.  18 . . ,  made  and  executed  by  C  D,  of  the  county  of  . .  . . ,  and 
State  of  . .  . . ,  of  the  first  part,  to  E  F,  of  the  second  part,  on  the  fol- 
lowing described  real  estate  situate  in  the  county  of  .  .  .  . ,  and  State 
of  Iowa,  to-vvit:  [here  describe  the  property,]  which  mortgage  was 
recorded  in  the  office  of  the  recorder  of  said  ....  county,  Iowa,  in 
book  . .  of  mortgages,  page  . . ,  on  the  ....  day  of  . . . . ,  A.  D.  18 .  . , 
[if  the  mortgage  has  been  assigned,  here  state  the  fact  as  follows: 
"  and  which  mortgage  was  duly  assigned  to  me  by  the  said  C  D,  on 
the  ....  day  of  .  .  . . ,  18  . . ,  and  recorded  in  the  office  of  the  recorder 
of  said  ....  county  in  book  .  .  of  mortgages  at  page  .  .  on  the 
....  day  of    . .  . . ,  18.  .J,  is  fully  paid,  satisfied,  and   discharged. 

Signed  the  ....  day  of  . .  . . ,  A.  D,  18 .  . . 

(Siarned  and  acknowledged  same  as  last  form.) 


TITLE   BOND. 
No.  173. 

Know  all  men  by  these  Presents: 

That  . . . . ,  of  ....  county,  and  State  of  .... ,  am  held  and  firmly 
bound  unto  .  .  .  . ,  of  ....  county,  and  State  of  .  . . . ,  in  the  penal 
sum  of  ....  dollars,  for  the  payment  of  which,  well  and  truly  to 
be  made,  ....  bind  .  .  .  .sel. .,  heirs,  executors,  and  administra- 
tors jointly  and  severally  by  these  presents. 

Whereas,  The  above  bound  ....  ha.  .  this  day  bargained  and 
sold  unto  the  said  .  .  . . ,  the  following  described  real  estate,  situ- 
ated in  the  county  of  ....,  and  State  of  ....,  viz:  [here 
describe  the  property],  according  to  the  tenor  and  effect  of 
the  ....  promissory  note..,  bearing  date  ....  Now,  the 
conditions  of  this  obligation  are  such  that  if  the  said  .... 
shall  pay,  or  cause  to  be  paid,  the  principal  and  interest  of 
said  note  at  ....  maturity,  and  shall  in  meantime  pay  all 
taxes  which  shall  hereafter  accrue  upon  said  real  estate.  And 
the  above  bound  ....  shall  make,  execute,  and  deliver,  or  cause 
to  be  made,  executed,  and  delivered,  a  good  and  sufficient  ... 
deed,  conveying  a  fee-simple  title  to  the  above  described  real 
estate,  then  this  obligation  shall  be  null  and  void,  otherwise  to 
remain  in  full  force  and  virtue,  both  in  law  and  equity. 

And  ....  wife  of  said  . . . . ,  hereby  agrees  that  upon  the  per- 


APPENDIX.  395 

formance  of  the  conditions  of  this  bond,  they  will  sign  and 
execute  the  proper  conveyances  to  said  real  estate. 

And  it  is  hereby  further  expressly  agreed  by  and  between  the 
....  parties  hereunto  that  .... 

[Signed,  and  acknowledged  same  as  No.  1G7.] 

POWER  OF  ATTORNEY. 
ISTo.  174. 

Knoio  all  men  hy  these  Presents: 

That  I,  A  B,  of  ...  county,  State  of  . .  . . ,  have  made,  con- 
stituted and  appointed,  and  by  these  presents  do  make,  constitute 
and  appoint,  C  D,  of  ... .  county.  State  of  .  .  . . ,  my  true  and 
lawful  attorney  for  me  and  in  my  name,  place,  and  stead,  to  . . . ., 
giving  and  granting  unto  my  said  attorney,  full  power  and 
authority  to  do  and  perform  all  and  every  act  and  thing  whatso- 
ever, requisite  and  necessary  to  be  done  in  and  about  the 
premises,  as  fully,  to  all  intents  and  purposes,  as  I  might  or  could 
do  if  personally  present,  with  full  power  of  substitution  and 
revocation,  hereby  ratifying  and  confirming  all  that  my  said 
attorney  or  his  substitute  shall  lawfully  do  or  cause  to  be  done 
by  virtue  hereof 

In  witness  whereof,  I  have  hereunto  set  my  hand,  this  .... 
day  of  .  .  .  . ,  18. .  

Signed  and  delivered  in  presence  of  .... 

[Signed,  and  acknowledged  same  as  No.  167.] 

LEASE. 
No.   175. 

This  article  of  agreement,  made  and  entered  into  on  this  .... 
day  of  . . . . ,  A.  D.  18 . . ,  by  and  between  A  B,  of  the  county  of 
.  . . . ,  and  State  of  . . . . ,  of  the  first  part,  and  C  D,  of  . . . . ,  of 
. . .  ,  of  the  second  part,  Witnesseth:  That  the  said  party  of  the 
first  part  has  this  day  leased  unto  the  party  of  the  second  part  the 
following  described  premises,  to-wit: .  . . . ,  for  the  term  of  ...., 
from  and  after  the  ....  day  of  . . .  . ,  A.  D.  18 . . ,  at  the  ....  rent 
of  . . . .,  to  be  paid  as  follows,  to-wit: .... 

And  it  is  furth(;r  agreed  that  if  any  rent  shall  be  due  and 
unpaid,  or  if  default  be  made  in  any  of  the  covenants  herein 
contained,  it  shall  then  be  lawful  for  the  party  of  the  first  part  to 
re-enter  the  said  premises,  or  to  distrain  for  such  rent;  or  he  may 
recover  possession  thereof,  by  action  of  forcible  entry  or  dotainei-, 
notv/ithstandirig  the  provision  of  section  3012  of  the  Code,  of 
lH7-'y,  he  may  use  any  or  all  said  remedies. 

And    the   said   party  of  the   second    part  agrees  to  pay  to  the 

party  of  the  first  part  the  ....   rent  of dollars,  to  be  paid  as 

follows,  viz:  ....,  except  when  said  premises  an;  uiitemihh;  by 
reason  of  fire  from  any  other  cause!  than  the  carelessness  of  the 
party  of  the  second  part,  or  of  p(;rsops  of  ... .  family,  or  in  .... 
employ,  or  by  superior  force  and  inevitable  necessity.      And  the 


396  APPKXDIX. 

said  party  of  the  second  part  covenants  that  ....  will  use  said 
premises  as  a  .  .  . . ,  and  for  no  other  purposes  whatever;  and  that 
....  especially  will  not  use  said  premises  nor  permit  tlie  same  to 
be  used  for  any  unlawful  business  or  purposes  whatever;  that 
....  will  not  sell,  assign,  underlet  or  relinquish  the  said  premises 
without  the  written  consent  of  the  lessor,  under  the  penalty  of  a 
forfeiture  of  all  ....  rights  untler  this  lease,  at  the  election  of 
the  party  of  the  hrst  ])art;  and  that  ....  will  use  all  du(;  care 
and  diligence  in  guarding  said  property,  with  the  buildings, 
gates,  fences,  trees,  vines,  shrubbery,  etc.,  from  damage  I)y  lire, 
and  the  depredations  of  animals;  that  ....  will  keep  the  build- 
ings, glass,  gates,  fences,  etc.,  in  as  good  repair  as  the  same  now 
is,  or  may  at  any  time  be  placed  in  by  the  lessor,  as  often  as  the 
same  shall  require  it,  damages  by  superior  force,  inevitable 
necessity,  or  fire  from  any  other  cause  than  from  the  carelessness 
of  the  lessee,  or  persons  of  ....  family,  or  in  ....  employ 
excepted;  and,  that  at  the  expiration  of  this  lease,  or  upon  a 
breach  by  said  lessee  of  any  of  the  covenants  herein  contained, 
....  will  without  further  notice  of  any  kind  quit  and  surrender 
the  possession  and  occupancy  of  said  premises  in  as  good  con- 
dition as  reasonable  use,  natural  wear  and  decay  thereof  will 
permit,  damages  by  fire  as  aforesaid,  superior  force,  or  inevitable 
necessity,  only  excepted. 

In  witness  whereof,  the  said  parties  have   hereunto  subscribed 
their  names  on  the  date  first  above  written, 

A....   B... 
C...   D.... 

In  presence  of   .... 

[The  above  lease  may  be   signed  and  acknowledged  the  same 
as  No.  167,  and  recorded,  if  desired.] 


ASSIGNMENT  OF  AN  INSTRUMENT  IN  WHITING. 
No.   170, 

In  consideration  of  ....  to  me  in  hand  paid,  I  hereby  assign 
and  set  over  to  C  D,  all  my  right,  title,  and  interest  in  and  to  the 
within  instrument. 

Witness  my  hand  this  ....  day  of  . .  .,  18, 


A....  B. 


(Acknowledgment  same  as  No.  1(57.) 

CONTRACT  FOR  SALE  OF  LANDS. 

No.  i-rr. 

This  agreement  made  and  entered  into  this  ....  day  of  . . . ., 
18.  .,  between  A  B,  of  ....  county,  and  State  of  Iowa,  of  the 
first  part,  and  C  D,  of  ....  county,  of  the  second  part,  wititesseth: 

That  the  said  party  of  the  first  part,  in  consideration  of  the 
agreement  hereinafter  contained,  to  be  performed  by  the  party  of 
the  second  part,  agrees  to  sell  unto  the  party  of  the  second  part 


APPENDIX.  397 

all  that  piece  or  parcel  of  land  described  as  follows,  to- wit:  [here 
describe  the  land],  for  the  sum  of  ....  dollars.  And  the  said 
party  of  the  second  part  in  consideration  thereof  agrees  to  pay 
the  said  party  of  the  first  part  the  said  sum  of  ...  dollars  in 
manner  following,  to- wit:    ....    dollars  on  the  execution  hereof^ 

and dollars  on  the    day  of    ,  18. . ,  with  interest  at 

the  rate  of    . .  per  cent,   thereon  from  this  date  until    the  time  of 

payment  thereof;    and    ....    dollars   on   the    day  of    .  .  .  ., 

18.  .,  with  interest  thereon  at  .  .  per  cent,  from  this  date  until 
the  time  of  the  payment  thereof;  also  to  pay  all  taxes  hereafter 
levied  on  said  real  estate  when  they  become  due. 

And  the  said  party  of  the  first  part  agrees  that  on  the  payment 
of  said  sums  at  the  times  aforesaid,  he  will  execute  and  deliver 
to  the  party  of  the  second  part,  at  his  own  cost  and  expense,  a 
good  and  sufficient  deed  for  the  conve^dng  and  assuring  to  him, 
the  party  of  the  second  part,  the  fee  simple  of  said  premises,  free 
from  all  incumbrances,  and  with  full  covenants. 

It  is  understood  that  the  party  of  the  second  part  is  to  have 
immediate  possession  of  the  premises. 

A....   B.... 
C...   D.... 

[It  may  be  acknowledged  the  same  as  No.  167.] 


ACKNOWLEDGEMENT  BY  AN  ATTORNEY  IN  FACT. 
No.  17S. 

State  of  Iowa, 


(^        ,      )■  ss. 
County.  ) 


On  this  ....  day  of  .  . .,  18. .,  before  me,  a  ....  in  and  for 
said  county,  personally  came  A  B,  to  me  personally  known  to  be 
the  identical  person  whose  name  is  subscribed  to  the  foregoing 
(or  within)  deed  (or  other  instrument),  as  attorney  in  fact  for  C 
D,  the  grantor  therein  named,  and  acknowledged  the  same  and 
the  execution  thereof  to  be  the  act  and  deed  of  the  said  grantor, 
by  him  as  his  attorney,  voluntarily  done  and  executed. 

Witness  my  hand  this  ....  day  of  18. . 

E. . . .   F. . . . ,  Justice  of  the  Peace. 


PETITION  TO  ESTABLISH,  VACATE  OR  ALTER  A  HIGHWAY. 
•N"o.  170. 

To  the  Board  of  Supervisors  of coiinti/,  loton: 

The  undersigned  ask  that  a  highway  commencing  at  .  . .  .,  run- 
ning thence  ....,  and  terminating  at  ....,  be  established  (or 
altered  or  vacated  as  the  case  may  be). 

A....   B.... 

C...    I).... 

E F ,  etc. 


308  APPENDIX. 

Before  filing  the  petition  the  petitioner  is  required  to  file  a 
])ond  in  the  office  of  the  county  auditor,  which  said  bond  may  be 
in  the  following  form: 


No.  ISO. 


HIGHWAY  BOND. 


State  of  Iowa,      )  To , 

....  County,  P^'  ,  A.  D.  18. . 

Knoxo  all  meti  by  thei^e  presents:  That  we,  [insert  the  names 
of  principal  and  surety,]  of  the  county  of  .  .  . . ,  and  State  of  Iowa, 
are  held  and  firmly  bound  unto  the  State  for  the  use  of  .... 
county,  in  the  sum  of  ....  dollars,  for  the  payment  of  which, 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  exec- 
utors, administrators,  and  every  one  of  them,  firmly  by  these 
presents. 

The  condition  of  the  above  obligation  is  such,  that  whereas 
[insert  the  names  of  one  or  more  petitioners]  has  this  day  made 
application  by  petition  to  the  [board  of  supervisors  or  county 
auditor  as  the  case  may  be]  of  said  county,  to  appoint  a  commis- 
sioner to  view  and  ....  locate  a  road,  to  be  called 

Now,  if  the  said  [insert  the  name  of  petitioner  for  road]  shall 
pay  all  costs  that  may  be  adjudged  against  him  by  the  board  of 
supervisors,  in  accordance  with  the  statute  in  such  cases  made 
and  provided,  then  is  this  obligation  to  be  void,  otherwise  to  be 
and  remain  in  full  force  and  virtue. 

Witness  our  hands  this  ....  day  of 


Approved  this  ....  day  of  . . . . ,  A.  D. 


.,  A.  D.  18.. 

. 

G... 

.  H. 

I.... 

J. 

K... 

.  L. 

IS... 

M....  N., 

> . .  • 

OFFICIAL  BOND  AND  OATH  FOR  COUNTY  OR  TOWNSHIP  OFFICERS. 
No.  181. 

Know  all  men  by  these  presents:  That  A  B,  as  principal,  and 
C  D  and  E  F,  as  sureties,   are  held  and   firmly  bound  unto  the 

,  and  State  of  Iowa,  in  the  penal  sum  of    ....  dollars, 

for  the  payment  of  which  we  bind  ourselves  firmly  by  these  pres- 
ents. 

The  condition  of  the  above  obligation  is^  That  whereas,  the 
above  bound  A  B  has  been  elected  ....  in  and  for , 

Now  if  the  said  A  B  shall  render  a  true  account  of  his  office, 
and  of  the  doings  therein  to  the  proper  authority,  when  required 
thereby  or  by  law;  and  shall  promptly  pay  over  to  the  person  or 
officers  entitled  thereto,  all  mtney  which  may  come  into  his 
hands  by  virtue  of  his  office;  and  shall  faithfully  account  for  all 
balances  of  money  remaining  in  his  hands  at  the  termination  of 


APPENDIX.  399 

his  office;  and  shall  hereafter  exercise  all  reasonable  diligence 
and  care  in  the  preservation  and  lawful  disposal  of  all  money, 
books,  papers,  and  sureties,  or  other  property  appertaining  to  his 
said  office,  and  deliver  them  to  his  successor,  or  to  any  person 
authorized  to  receive  the  same;  and  if  he  shall  faithfully  and 
impartially,  without  fear,  favor,  fraud,  or  oppression,  discharge 
all  other  duties  now  or  nereafter  required  of  his  office  by  law, 
then  this  bond  to  be  void,  otherwise  in  full  force. 

Signed  this  ....  day  of  . . . . ,  18 . . .  A ....  B ... . 

C...   D.... 
E....   F.... 
State  of  Iowa,      ) 
. County,  [ 

I,  A  B,  solemnly  swear  that  I  will  support  the  Constitution  ©f 
the  United  States  and  the  Constitution  of  the  State  of  Iowa,  and 
that  I  will  faithfully  and   impartially  discharge  the  duties  of  the 

office  of  , ,  according  to  the  best  of  my  ability. 

A....  B.... 
Subscribed  and  sworn  to  by  A  B,  before  me  this   ....  day  of 
....,  A.D.  18... 

M....  N.... 

ACCOUNT  BETWEEN  ROAD  SUPERVISOR  AND  THE  DISTRICT. 

Dick  Hixon,  Road  Supervisor  of  Road  District  No.  1, . 

Township,     ....    County,    Iowa,  in   account    with 

said  district. 
1870.  Dr. 

April     1.     To  tax  list  this  day  received f  500,00 

Aug.  10.     To  cash  this  day  received 25.00 


Oct. 

1. 

Oct. 

7. 

Oct. 

9. 

Oct. 

15. 

Oct. 

29. 

Sept. 

1. 

Total $525.00 

Cr. 

By  road  tax  collected $400.00 

By  cash,  D.  Hart,  for  work,  voucher  No.  1.  . .  4.00 
By  cash,  S.  Stack,  for  lumber,  voucher  No.  2.  7.00 
By  cash,  B.  Smith,  for  teaming,  voucher  No.  3       4.00 

By  cash,  delinquent  tax-list  returned 100.00 

By  cash  paid  township  clerk    10.00 


Total $525.00 

State  of  Iowa,      }  Township, 

....  County,  f  District  No 

To  the  Township  Clerk  of 


Township,  ) 


County. 

The  undersigned  Supervisor  of  Road  District  No.  . .  .,  herewith 
presents  his  semi-annual  report,  as  follows: 


400 


APPENDIX. 


u 

^ 

6 

■n 

b 

NAMES 
of  persons  required  to  perform 

in 

•a 

o 

u 
O 

s 

rt 

o 

1 

u 

o 

1^ 

_4) 

o 
u 

labor  and  pay  tax   for  road/^  j;  |  -s 

c 

u 

C 

c 

§E     §    . 

purposes. 

o^i' 

•a 
'5 

a 

•a 
"3 

;2 

o-c     E- 

6  — 

Vb 

/:     o 

d: 

0. 

(£ 

£  1/5    i<    'z 

< 

John  Doe  

R.  P 

2 

2|    .    . 

$  .75 

«  .75 

.    . 

2 

2  $1.26 

.50 

.50 

T.  T 

2 

2     .    . 

1.00 

1.00 

R  H            

I 

2 

2     .    . 
2     .    . 
2     .    . 

.   $1.25 

.50 
1.00 

$3.75 

$2  25 

f  .50 
$  .50 

'  l" 
1 

$2  50 
$2.50 

AH            

T    F               

1    $1.00 

Total 

1     $1.00 

LIST  OP  NON-RESIDENT  LANDS  ON  WHICH  ROAD  TAX  REMAINS  DUE. 
No.  1S3. 


S.  E.  qr.  S.  E.  qr 

S.  W.  qr 

S   W  qr       

1  87 

1  87 
4  87 

4 

$     1  50 

1 

4 
4 

5.00 
4.56 

1 
1 

Total 

$  11,00 

To  the  above  report  must  be  added  the  items  contemplated  in 
Divisions  7,  8,  9  and  10,  Section  987.  By  a  strict  observance  of 
this  section,  township  officers  will  save  much  confusion,  and  con- 
tribute greatly  to  the  interest  of  the  Road  Fund. 

Section  975  requires  the  township  clerk  to  make  a  report  of  all 
non-resident  lands  and  town  lots  on  which  road  tax  has  not  been 
paid,  which  may  be  the  same  as  form  No.  183. 

All  these  blanks  should  be  ruled  and  printed,  and  furnished  to 
the  clerks  by  the  county,  so  as  to  insure  uniformity. 

The  Supervisor  should  give  each  tax-payer  a  receipt,  which 
may  be  in  the  following  form: 


ROAD  SUPERVISOR'S  RECEIPT. 


No.  184. 


Date  .   .   . 

Name .    . 
Amount,  $ 


18 


Tax,  $ 


County,  Iowa, 

.    .    .    .   '.  .  IS  .    .  . 

Received   of the   sum   of 

.    .    .     dollars cents,  in    ...   in 


Description |  full  of  his  Poll  and  Personalty  Road  Tax,  and  Road 


Tax,  $  . 


Paid  in 


Tax  on for 

the  year  18  .    .  . 

A  .    .    .    B.    .    .  . 
Supervisor  Road  District  No.  .    .  . 
$  .    .    ,  Township. 


IS'OTE. The  above  should  be  furnished,  bound  in  convenient  sized  books. 


INDEX. 


PAGE. 
ABANDONMENT— 

of  homestead  by  husband,  exemption  applies  to  wife  and  children  .    ,   .  120 

of  railway,  land  may  be  condemned 149 

ABATEMENT— 

supervisors  cannot  abate  taxes 345 

ABSTRACTS—  ^ 

of  election — sent  to  secretary  of  state  by  auditor 224 

Recorder — may   make  of  land 280 

not  evidence  of  record 280 

form  of 280 

ACCOUNTS— 

what  treasurer  must  keep 258 

of  township  collector 377 

what  to  be  made  of  public  funds  loaned 14 

between  road  supervisors  and  districts 399 

ACKNOWLEDGEMENT— 

who  may  certify I3 

of  deed,   form  of 390 

AFFIDAVIT— 

admissible  to  prove  sale  of  property  under  chattel  mortgage 156 

ADVERTISEMENT— 

of  sales  for  taxes  Xo  he.  published 244 

letters  and  figures  may  be  used 245 

certificate  of  publisher 245 

fees  for  publishing 11 

fees  for  posting  up 12 

AFFIRMATION— 

instead  of  swearing,  when 13 

penalty  for  false 13 

ADMISSION— 

form  of,  of  service  of  notice 82 

ADMINISTRATOR— 

letters  o(,  issued  by  clerk 68 

appointed  in  vacation  by  clerk 68 

AGENTS— 

When  may  be  served  with  original  notice 84 

ANSWER— 

of  garnishee,  how  made 99 

26 


403  INDEX. 

APPEAI.— 

from  assessment  of  damnges  for  property  condemned 149 

■when   barred,  in   condemnation  of  property 1J9 

notice  of  how  served IT)? 

hes  from  order  of  supervisors,  when 217 

to  supreme  court,  when  perfected G6 

certificate  of,  to  supreme  court GG 

bond  on,  to  lie  approved  by  clerk CtCt 

supersedeas  bond,  form  of GG 

bills  of  costs  of,  to  be  made  by  clerk fiS 

from  supervisors  in  road   cases 230 

how  taken  from  order  of  trustees,  in  case  of  drainage .350 

trial  of  in  circuit  court 350 

of  poor  person  from  action  of  trustees 338 

APPOINTMENT— 

to  fill  vacancies,  how  made 10 

qualification  of  appointee 10 

removal   of  appointee 10 

or  suspension  of  officer 7 

when  officer  suspended 7 

of  deputies,  who  may  make 7 

deputy  clerk,  how  made 22 

guardians  in  vacation 71 

jury  to  examine  attached  property '' 91,100,  102 

appraisers  of  perishable  property 1 04 

partnership   property 113 

jury  to  settle  disagreement  as  to  exempt  homestead 123 

appraisers  of  real  estate  taken  under  execution 132 

property  in  replevin 144 

jury  to  fix  damages  for  property  condemned  for  public  improvement  . 

147,  152 

inspector  of  coal  mines 219 

commissioner  of  highways 229 

justices  and  constable,  when 348 

APPRAISEMENT— 

forms,  of  property  condemned 151 

in  replevin,  how  made 144 

execution,  of  real  estate,  to  be  only  interest  of  execution  of  defendants  therein  133 

form  of,  and  return,  under  execution 132 

of  personal  property  sold  on  execution 132 

of  attached  perishable  property 104 

summons  and  oath  of  appraisers  of  perishable  property 104 

of  property  under  delivery  bond  :  how  made 102 

of  attached  property,  before  released  by  bond 100 

of  damages  for  drainage 350 

APPRAISERS— 

report  of,  on  attached  property 103 

ARBITRATORS— 

compensation  of 11 

ARREST— 

warrant  for,  issued  on  complaint      169 

form  of,  to  whom  directed Ifi9 

indorsement  of :  when  for  misdemeanor 1G9 

how  and  where  served 170 

when  felony  charged,  defendant  taken  before  magistrate   .    .  170 

what  is,  for  crime 171,  174 

by  whom  may  be  made 171 

magistrate  may  orally  order 171 

how  made  with  \sfirrant 171 

without  warrant 171 

by  private  person 171 


INDEX.  403 

ARREST— Continued— 

when  may  be  made 171,  173 

proceedings  after 171 

power  of  officer  when  resisted 172 

officer  may  break  and  enter  premises 172,  174 

person  refusing  to  aid  in  making,  guilty  of  misdemeanor 172 

unnecessary  force  not  to  be  used  in  making .  172 

offensive  weapons  taken  from  person  arrested 172 

re-arrest  in  case  of  escape 172 

when  made  by  bystander,  what  to  be  done 172 

private  person,  what  to  be  done 172 

officer  with  warrant,  what  to  be  done 173 

without  warrant,  what  to  be  done 173,  174 

must  not  arrest  wrong  person 175 

what  constitutes  arrest 174 

officer  justified,  though  party  not  found 175 

return  of  warrant  on 173 

ASSESSMENT  OF  TAXES— 

supervisors  to  levy 203 

exemption  from 203 

Counfjf  Board  of /ii/tealizafio>t,  supervisors  to  constitute 204 

auditor  to  transmit  abstract  of  assessments  to  state  auditor 226 

Treasurer  to  enter  on  tax  book  taxes  unpaid  for  previous  years 240 

to  collect  taxes,  list  to  be  his  justification 240 

to  give  notice  when  land  has  been  sold 240 

when  requested  to  certify  amount  of  taxes  due 240 

efTect  of  certificate 240 

liable  on  bond  for  error  in 240 

may  assess  taxes  omitted 240 

owner  may  have  property  assessed 240 

lien  of  taxes  between  vendor  and  vendee 240 

Township  Board  of  Equalization,  trustees  to  constitute" 345 

ASSESSMENTS— 

of  township,  equalized  by  supervisors 204,  215 

cannot  be  reduced  by  supervisors 220 

may  be  reduced  by  township  trustees 220,  345 

when  in  township  to  be  made 371 

to  be  made  on  all  property 372 

township  trustees  may  correct  unequal 345 

remedy  for  unequal 345 

ASSESSOR  OF  TOWNSHIP— 

election  of,  when 4,  371 

qualification  of 5,  371 

must  give  bond 371 

powers  and  duties  of 371 

to  make  list  of  voters 371 

to  assess  township •    • 371 

when  to  assess 371 

must  assess  values 371 

what  to  be  assessed .' 372 

when  list  to  be  corrected 372 

to  deliver  books  to  township  clerk 372 

when  owner  unknown,  how  to  assess 372 

penalty  for  neglect  of  duty 372 

must  meet  board  of  equalization 372 

must  make  militia  list 372 

militia  list,  what   it  is 373 

must  make  list  of  children  of  deceased  soldiers 373 

county  auditor  to  furnish  blanks 373 

compensation  of 373 


404  INDEX. 

ASSIGNMENT— 

of  instrument  in  writing 396 

ATTACHMENT— 

what  may  be  taken,  and  how 89 

when  no  property  found,  defendant  may  be  examined 89 

lien,  property  bounci  from  time  of  service  of  writ  .    .    .    .    « 90 

receiver,  may  be  appointed  in,  when 90 

money,  taken,  to  be   paid  to  clerk 90 

property  taken,  how  disposed  of 90 

proceedings  in  cases  of  mortgaged  property 90 

proceedings  when  indebtedness  is  due  state 90 

r^/ar«,  officer's  return  on,  what  it  must  show 91 

wrongfully  made,  when  debt  due  state,  officer  liable 91 

*;r/f/««  of  keeping  property,  to  be  paid  by  plaintiff 91,  96 

surplus  property  to  be  returned  to  defendant 91 

if  judgment  for  defendant,  property  to  be  returned "    "    .    .    .  91 

iw/ffrtw/Z/'cw  in,  how  made  and  tried 91 

•writ,  what   the  writ  for  must  contain 92 

writ  of,  presumed  regular,  when 92 

levy,  amount  of  levy  to  be  made       -^ 92 

not  to  be  made  on  exempt   property,  except 93 

bond  in,  no  protection  for  seizure  of  exempt  property 93 

what  is  valid  levy  of 93 

not  valid  levy  of 94 

when  may  be  discharged 93 

when  levy  void,  property  need  not  be  removed 93 

when  levy   made,  property  must  be  in  view 94 

when  officers  may  break  open  buildings 94 

officer  not  authorized  to  break  dwelling  house 94 

when  made,  property  vests  in   officer 95 

effect  of,  when  property   left  with  third  person 95 

form  of  entry  for  by  clerk 35 

statutes  relating  to 52 

*o»rf— plaintiff  must  give  bond  before  issued 52 

defendant  may  require  additional  security,  when 52 

no  protection  against  seizure  of  exempt  property 93 

counter-claim— ■s.c'ixon  on  by  counter-claim 52 

to  whom  directed '52 

more  than  one  allowed,  when , 52 

form  of  bond   in 53 

writ  of 53 

contempt — form  of  writ  of,  for  contempt 70 

officer  must  take  amount  of  property  directed 89 

may  follow  property  to  another  county,   when 89 

j;jtfr;/" J  duty  relating  to 89 

upon  real  estate,  how   made 96 

of  money,  how  disposed  of 96 

release — property  released  from,  how 100 

bond  must  be  given  plaintiff  to  release  property 101 

before  delivery  bond  given,  property  must  be  appraised 100,  102 

form  of  delivery  bond 101 

on    claim  of  property 102 

dehvery  bond,   how  approved 102 

appraisement — form  of  summons  to  appraisers  of  attached   properly.    ...  103 

of  perishable  property. how  made 104 

defendant  entitled  to  hearing  before  jury  on  sale  of  perishable  property  .  106 

form  of  defendant's  consent  to  sale  of  perishable  property 106 

^rit — specific,  what  writ  must  contain 106 

return — form  of  return  to  writ  of 107 

when  return  to  writ  should  be  made 109 

what  return  to  writ  must  contain 107 

ATTORNEY— 

coroner  cannot  act  as 313 

cannot  adjourn  judicial  sale 138 


INDEX.  405 


ATTORNEY— Continued— 

oath  of 44 

clerk  cannot  act  as •  .  .  26 

license  of 36 

power  of,  form  of 395 

AUDITOR— 

election  and  qualificaiion  of 3,  4 

laws,  to  be  distributed  by 222,  235 

duties  of,  enumerated 221 

warrants,  when  must  sign 221 

must  keep  record  of 212 

school  fund,  duties  as  to 221 

eourt  house,  has  charge  of 222 

county  officers,  name  and  ieTxn  oito  he  rcpoTied  to  secretary  of  state  ,    .    .    .  222 

eligibility,  of  clerk  and  recorder  to  office  of 222 

cannot  be  treasurer 222 

receiver,  to  take  oath  of,  before  credit  given 222 

census,  duties  in  relation  to 223 

jurors,  must  make  apportionment  of 223 

to  issue  warrants  for  fees  of,  when 235 

svpervisors ,  must  record  proceedings  of 205 

entry  in  record,  form  of 205 

duties  in  relation  to  special  meetings 223 

tax  list,  to  make  duplicate  for  township  collectors 223 

flats,  of  lands,  to  make  in  certain  cases 223 

book  of,  how  kept ....    • 234 

poll  books,  how  to  be   furnished  each  precinct 224 

election,  duty  of  when  tie  vote 224 

to  transmit  abstract  of  votes,  when 224 

of  clerk,  contested,  to  act  as  clerk  .    . 225 

to  record  removal  of  officers 225 

official  bonds,  must  be  recorded  by 226 

•warrant  book,  what  it  must  contain 207 

deputy  may  be  appointed  by 225 

vacancies  in  township  officers  to  be  reported  to  township  clerk 225 

by  removal  of  county  officers  to  be  recorded 225 

revenue:  to  send  auditor  of  state  abstract  of  property  when 226  . 

to  correct  assessment  list 226,  227 

taxes,  to  consolidate,  when 227 

to  make  up  tax  book,  when 227 

to  correct  errors  in  tax  book 227 

to  designate  lands  sold  in  tax  book 227 

what  tax  book  should  show 227 

to  certify  statement  of,  to  state  auditor,  when 228 

to  keep  account  of,  with  treasurer 228 

accounts  how  kept 228 

must  attend  tax  sales 228 

cannot  purchase  at  tax  sales 229 

to  issue  certificate  of  redemption,  when 229 

highways,  doings  of  supervisors  to  be  recorded 207 

form  of  record  of 207 

to  appoint  commissioners  of,  when 229 

may  extend  time  for  commissioner  to  report 229 

duties  of,  when  no  claim  for  damages  filed 230 

must  record  all  proceedings  in  relation  to 230 

duties  of,  on  apjjeal  in  road  case 230 

must  make  plat  of  all  highways 230 

railroads,  must  send  statement  of  property  of,  to  taxing  districts 231 

militia,  must  keep  register  of 231 

insane,  duties  in  relation  to 231 

estrays,  duties  in  relation  to 231 

j«/«ij-i<rii//>/i' //yw^^-f-',  must  give  notice  of  application  to  sell 231 

jtAco/ /««(/,  must  apportion  school  tax  and  interest 231 

must  report  dclinfjuents  to  school  fund 232 

must  preserve  abstract  of  title,  when  school  fund  loaned 232 


406  INDEX. 

AUDITOR— CoNTiNUF.n— 

school  fund,  to  report  money  received  and  paid  out  of 232 

is  liable  for  money  loaned 233 

must  keep  account  of,  with  treasurer 233 

report  condition  of,  to  state  auditor 233 

may  be  fined  for  neglect  of  duty 233 

schools,  to  report  election  of  county  superintendent 232 

index  and  transfer  books,  how  kept 234 

form  of 233 

after  entry  in,  deed  must  be  indorsed 234 

deed  cannot  be  recorded  until  indorsed 234 

may  be  corrected  by 234 

liability,  is  on  bond  for  money  loaned 234 

compensation, \i\\-i!L\.\\.t.'\'i  allowed 234 

BAIL— 

taken  in  case  of  misdemeanor 170 

when  given  defendant  discharged 170 

not  given,  taken  before  magistrate 170 

proceedings  after  arrest 171 

BAILIFF— 

oath  of,  in  court 44 

to  be  appointed  by  sheriff 190 

have  powers  of  deputy 190 

unlimited  number  may  be  appointed 190 

bond  of,  may  be  required 190 

BANKS— 

capital  of  savings,  to  be  taxed 255 

BENCH  WARRANTS—. 

clerk  to  issue  when 68 

form  of 69 

where  served •  .    •  180 

proceedings  when  bail  given 180 

when  against  a  corporation   ....        180 

must  be  issued  after  indictment,  at  once 180 

ni  case  of  felony,  or  misdemeanor 180 

when  defendant  on  bail 180 

when  for  final  judgment,  where  served 181 

may  be  issued  for  contempts,  etc 181 

BILL  OF  SALE— 

sheriff  must  give   when 54 

affidavit  of  office  to  be  attached  to 154 

BOARD  OF  EQUALIZATION— 

of  county, who  constitute 204 

of  township,  who  constitute 346 

BOARD  OF  HEALTH— 

who  to  constitute 346 

powers  of 346 

how  executed 347 

violation  of  regulations  of,  punished 347 

expenses  of,  how  paid 347 

BLIND— 

clothing  account  of,  in  hospital,  collected  by  treasurer 254 

BOND— 

of/icial.  form  of,  of  civil  officers ^ 

of  officers,  how  given * 

penal  sum  of,  of  county  officers " 

oiiicers  must  have  two  sureties * 

if  not  increased  when  required,  office  vacant 8 


INDEX.  407 

BOND— Continued — 

when  surety  on  official,  may  be  released 8 

required  for  surety,  except  otherwise  provided 13 

defective  not  prejudicial,  when 13 

surety  on,  must  reside  in  this  state 13 

surety  on,  must  qualify  on  oath 13 

liability   of  surety  on 21 

^4r<f<:?//;o«,  form  of,  for  stay  of  execution 48 

attachvient ,  required  of  plaintiff  before  attachment 52 

allowed  to  defendant,  when,  in  attachment 52 

form  of  attachment 53 

of  officers,  by  whom  approved 5 

form    of  approval 20 

in  case  supervisors  neglect  to  approve 5 

of  officers,  where  recorded 5 

of  officers,  how  construed 6,  20 

form  of 20 

of  officer  not  void  for  irregularity 6 

of  officer  not  approved  till  property  accounted  for 6 

of  officer  holding  over,  to  be  renewed 6 

required  of  temporary   officer 0 

deputy  must  give,  to  principal 7 

when  amount  of,  may  be  increased .        g 

replevin,  must  be  given  in  replevin 54 

form  of 54 

injunction,  must  be  given  in  injunction 55 

form  of 55 

appeal,  in  appeal  cases  to  be  approved  by   clerk 66 

supersedeas,  amount  of 66 

form  of 66 

guardians,  to  be  recorded  by  clerk 67 

receivers,  to  be  approved  by  clerk 68 

debt  due  state,  not  required  of  plaintiff,  in  attachment  when  debt  due  the  state  90 

of  clerk,  how  given 19 

how  clerk  to  proceed  when  supervisors  refuse  to  approve 19 

in  attachment,  no  protection  against  seizure  of  exempt  property 93 

garnishee,  to  release  property  in  hands  of  garnishee 101 

delivery,  takes  place  of  attachment  lien 101 

for  delivery  of  attached  property 100 

attachment,  what  required,  in  attachment,  and  effect  of 100 

to  whom  given  in  attachment 101 

release,  form  of,  for  release  of  attached  property 101 

on  claim  of  properry  attached 102 

for  delivery  of  attached  property,  how  approved, 102 

for  release  of  execution,  how  given 113 

when  indemnifying  not  given,  levy  discharged 114 

if  good  when  taken,  officer  protected 114 

indemnifying,   required  when 117 

form  of  indemnifying 118 

indemnifying,  when  given,  returned  to  clerk 118 

replevin,  form  of  in  replevin 143 

proceedings  in,  when  judgmgnt  on  replevin 146 

bailiff,  may  be  required  of  bailiff 190 

of  slur  iff,  good,  though  not  in  statute  form 192 

sureties  on  substituted,  when  not  liable 19S 

technical  objections  in,  disregarded  by  court 192 

official  to  be  recorded  by  auditor 225 

af  county,  how  disposed   of • 237 

how  paid  or  redeemed 237 

tax  to  pay,  how  levied 237 

recorder    to  give 277 

surveyor  to   give 282 

of  notary  public 323 

notary  cannot  act  till  given 323 

of  township  officers 335 

official,  form  of 398 


408  INDEX. 

BOND— Continued— 

highway,  form  of : 398 

title,  form  of 394 

BRIBE— 

penalty    for   receiving 14 

BRIDGES— 

supervisors  may  hcense  for  toll 204,  217 

build,  when 200,215,  217 

fix  toll  thereon 204 

when  county  liable   for  unsafe 217 

liability  of  supervisors  for  illegal  erection  of 215 

county  for  unsafe 217 

CALENDAR— 

of  prisoners   in  jail 181 

CENSUS— 

duty  of  auditor  relating  to 22S 

CERTIFICATE 

form  of  judicial  record fi* 

of  redemption  on   execution  sale 134 

form   of 135 

^/«rir/zaj^,  sheriff  to  give,  when  right  to  redeem  exists 247 

redemptioner  entitled  to  assignment  of • 247 

of  records,  valid  as  evidence 252 

^r^£/«/////t)«,  of  property  sold  for  taxes,  how  given 247 

y^wr^'j,  of  fence  viewers 343 

health,  of  board  of 347 

stock,  of  damages  from  trespass ;    .  364 

jurors,  of  clerk  for  fees  of 70 

CERTIORARI— 

form  of  writ  of 51 

writ  of,  when  granted 51 

CLERK  OF  CIRCUIT  COURT— 

absconding  father,  \o\ss\ie  order  for  seizure  of  property  of 67 

marriages,  to  issue  licenses  for fi7 

to  keep  record  of 67 

paupers,  may  bind  out 67 

apprentices,  must  guard  interests  of 67 

orphans,  may  consent  to  adoption   of 67 

probate,  to  approve  bonds  in  such  cases 67 

bonds  in,  to  be  filed  with 67 

to  open  wills  of  testators 67 

to  fix  day  for  proving   wills 67 

duties  as  to  cases  in  vacation 67 

to  keep  probate  records 67 

to  make  complete  records,  when 67 

executors,  to  record  sales  made  by 67 

to  appoint  in  vacation 67 

to  record  bonds  of 67 

guardians,  to  record  bonds  of 67 

to  appoint   in    vacation 68 

CLERK  OF  DISTRICT  AND  CIRCUIT  COURT— 

election,  when 1^ 

qualification  of 19 

official  bond  of |9 

must  have  two  sureties 1^ 

must  be  approved  by  supervisors 19 

proceedings  when  supervisors  refuse  bond 19 

construction  of 20 

form  of 20 


INDEX.  409 

CLERK  OF  DISTRICT  AND  CIRCUIT  COURT— CONTINUED— 

official  bond,  approval  of 21 

when    new,   required 24 

liability  of  sureties  on 21 

vacancy  of,  how  filled 22 

has  right  to  resign 22 

deputy,  appointment   of 22 

form    of 23 

how   approved 23 

removal  of,  at  will , 23 

form  of 23 

to  give  bond  to  principal 24 

powers  of 24 

must  attend  court  and  keep  record,  papers  and  seals 25 

how  must  designate  himself  when  signing 25 

books  to  be  kept  by 25 

to  enter  suits  brought  in  appearance  docket 26 

return  on  original  notice  in 26 

date  of  filing  pleadings 26 

other  matters  relating  to  trial 26 

minutes  of  both  courts  in  same  book,  when ,    .    .    .    .  26 

make  report  of  criminal  convictions  to  secretary  of  state 26,  68 

prohibited  from  acting  as  justice  or  attorney 26 

records,  to  show  presence  of  judge,  etc 27 

entry  on  organization  of  court 28 

plea  of  guilty,  criminal  cause 30 

trial  by  jury,  criminal  cause 31 

civil  cause 32 

judgment  on  note,  and  foreclosure 32 

re-taxation  of  costs 34 

order  for  security  for  costs 35 

attachment 35 

default  on  note  by  two  makers,  and  decree  of  foreclosure  against 

one 35 

license  of  attorney 36 

decree  on  counter-claim 37 

partition  of  lands 38 

judgment  by  confession  in  vacation 41 

calendar  of  causes,  how  kept  for  court 25 

to  be  furnished  the  bar,  how 45 

record,  probate:  entry  on  probate  of  will 40 

record,  complete,  when  to  make 46,  67 

judgment  docket,  what  it  must  contain 41 

entry  of  judgments  in  index  book  not  sufficient 41 

entry  of  execution  proceedings 47 

oaths  in  court,  by  whom  administered 42 

juror  to  be  excused 42 

for  remission  of  fine 42 

to  grand  jurors,  as  to  qualification 42 

foreman 43 

trial  jurors,  on  challenge  to  panel 43 

touching  qualification 43 

on  trial  of  cause 43 

witnesses  on  trial  of  cause 44 

interpreters  on  trial  of  cause 44 

bailiff  in  charge  of  jury 44 

on  retiring  with  grand  jury 44 

attorneys 44 

Jurors,  how  to  be  drawn 45 

selected  and  summoned 57 

number  of  grand  jurors 57 

when  trial,  fail  to  attend 57 

when,  may  be  discharged 77- 

list,  what  to  consist  of 67 

how  selected 57 

sheriff  to  serve  notice  on » 67 


410  INDEX. 

CLERK  OF  DISTRICT  AND  CIRCUIT  COURT— Continued— 

_/«rorj,  list  of,  returned  to  clerk  by  judges  of  election 57 

term  of  service  of  grand 68 

trial 58 

auditor  to  write  naines  of,  when 58 

clerk  to  draw  names  of 5i8 

issue  precept  for 58 

sheriff  to  serve  precept 58 

grand,  to  attend  without  summons,  when 58 

when  precept  for,  set  aside 58 

venire,  form  of 70 

to  give  certificate  to,  of  fees 70 

to  keep  record  of  per  diem  in  each  case 70 

costs,  to  be  re-taxed  by,  when 47 

execution,  must  be  issued,  when 47 

liability  for  neglect  to  record  proceeding  under 47 

what  it  must  contain 47 

when  for  money   against    property 48 

against  real  property 48 

for  delivery  of  property 48 

performance   of  any   act 48 

judgment  is  against  principal 48 

may  issue  :  but  one  at  a  time 48 

stay  of,  how  taken  and   effect  of 49 

after  issued 49 

when  surety  may  have,  issued 49 

stay  bond,  form  of 49 

for  money,  form  of 50 

special  form  of 51 

certiorari,  may  be  granted  when 51 

form  of  writ  of 51 

attachments,  plaintiff  must  give  bond 52 

defendant  may  require  additional  security  when 52 

action  on  by  counter-claim 52 

process  of,  to  whom  directed 62 

more  than  one  may  be  issued   .    .    .    ; 52 

bond,  form   of 53 

writ,  form  of 53 

replevin,  plaintiff  to  give  bond 64 

order  may  be  issued  to  sheriff 54 

another  county,  when 54 

bond  of,  form  of 64 

writ  of,  form  of 55 

injunction,  not  allowed  until  filed 55 

bond  to  be  approved 65 

form  of 66 

writ,  form  of 56 

depositions,  notice,  and  copy  of  interrogatories  served  on  adverse  party  ...  68 

cross  interrogatories  to  be  filed "  .    .  58 

service  of  notice,  how  made 69 

how  taken 59 

commission  to  take,  form  of 59 

instructions   for  taking 60 

may  be  returned  by  mail 62 

cross-interrogatories  form  of 63 

mortgages,  must  note  foreclosure  of  on  record  of 64 

form  of  minute  of  foreclosure 64 

satisfaction  of  foreclosure 64 

certificate,  required  to  give  certified  copy  of  records,  when 65 

effect  of  such  certificate 65 

judicial  record  proved  by 66 

form  of  certificate  of  record 65 

in  appeal  cases 66 

appeal,  to  supreme  court  when  perfected 66 

transcript  of  record  sent  up 66 

evidence  bow  certified 66 


INDEX.  411 

CLERK  OF  DISTRICT  AND  CIRCUIT  COURT— CONTINUED— 

must  approve  supersedeas  bond 68 

penalty  fixed  in  supersedeas  bond 66 

execution  issued  before  bond  filed  to  be  countermanded 66 

supersedeas  bond,  form  of 66 

to  make  bills  of  costs  of 68 

process  must  be  dated  when  issued 67 

absconding  father,  to  issue  order  for  seizure  of  property  of 67 

marriages,  to  issue  license  for 67 

keep  record  of 67 

paupers,  to  bind  out  by  indenture 67 

apprentices,  to  guard  interests  of 67 

probate,  to  approve  bonds  in  such  cases 67 

to  open  wills  of  testators 67 

to  prove  wills 67 

duties  as  to,  in  vacation 67 

executors,  to  record  sales  made  by 67 

to  appoint  in  vacation 67 

guardians,  to  record  bonds  of 67 

to  appoint  in  vacation 68 

yiir-^///,  to  issue  on  demand  of  any  person,  when .    .  67 

form  of 68 

justice,  to  file  transcript  of  docket  of 67 

confession,  to  record  judgments  on 68 

costs,  to  make  bill  of,  on  appeal 68 

to  pay  witnesses,  when  received 68 

notaries,  to  give  attested  copies  of  records  of,  when 68 

elections,  when  contested,  to  issue  subpcenas 68 

habeas  corpns,  to  keep  record  of  proceedings  in 68 

bench  warrants,  Xo\si,\xQ  Sinoxd&r  oi']\xdge 68 

form  of 69 

contempt,  to  issue  attachment  for 70 

form  of  attachment  for 70 

flats,  on  petition  for  vacation  of,  to  give  notice  of  hearing 71 

iTOOT/tfffja/ii'w,  fees  to  be  reported  to  supervisors .    68,  72 

unclaimed,  paid  to  treasurer 68,  72 

what  is  allowed  generally 71 

in  criminal  cases 71 

in  pensions  and  bounties 71 

in  probate  matters 71 

for  marriage  licenses 71 

for  settlement  of  estates 71 

when  limited 71 

cannot  charge  fees  unless  allowed  by  statute 72 

penalty  for  taking  illegal 12 

when  fees  to  be  paid  in  advance 12 

to  be  furnished  office,  fuel  and  stationery 12 

for  publication  of  legal  notices 12 

not  othenvise  fixed      11 

for  certificate 11 

affidavit 11 

affixing  seal 11 

making  transcript 11 

CLERK  OF  TOWNSHIP— 

when  elected 356 

how  (jualified 356 

may  resign 356 

duties  of 356 

what  records  to  keep 356 

may  administer  certain  oaths 356 

to  notify  county  auditor  of  officers  elected 356 

to  act  as  clerk  of  election 357 

to  preserve  poll  books 357 

to  keep  the  ballots 357 

duty  when  there  is  a  tie 357 


412  INDEX. 

CLERK  OF  TOWNSHIP— Continued— 

to  post  notices  of  officers  elected 357 

rf^w/ra//o«,  to  make  list  of  voters  in  certain  cases 358 

is  one  of  board  of  registry 358 

register  of  election,  what  to  contain 358 

board  of.  when  to  meet 353 

in  city  or  town  to  prepare  register  of  voters 359 

special  elections,  duties  of 359 

board  of  in  new  township 359 

where  registry  law  does  not  apply '  359 

highways,  must  furnish  supervisor  with  plat  of 360 

must  make  tax  list  for  highway  districts 3G0 

wliat  list  must  contain 360 

when  taxes  have  not  been  paid 360 

county  treasurer  to  pay  clerk 360 

to  approve  bonds  of  road  supervisors 361 

to  notify  road  supervisor  of  his  election 361 

to  direct  highway  to  be  opened,  when 361 

drahiage,  to  file  petition  for 361 

to  notify  trustees 361 

may  approve  bonds  in  drainage  petitions 361 

trespassing  animals,  must  file  the  assessment  of  damages 362 

road  fund,  must  keep  account  with 362 

form   of  account 362 

record,  form  of,  for  township 363 

form  of  certificate  of 365 

fees,   what   allowed 366 

COAL  MINES— 

inspector  of,  how  appointed 219 

COLLECTOR  OF  TOWNSHIP— 

election  of,  when 374,  376 

qualification  of 374 

taxes,  powers  of 374 

to  give  notice  of  tax  list 375 

must  demand  taxes 375 

must  make   monthly  statement 375 

unpaid  taxes,  how  collected 375 

failure   to  collect 376 

liability  of  for  taxes 376 

notice  of  to  tax  payers  .        376 

sale  of  property  for  taxes 376 

form  of  monthly  statement 377 

final  statement 377 

affidavit  of  unpaid  taxes 377 

cannot  distrain   exempt  property 377 

fees  of 377 

COLLECTION  OF  TAXES— 

warrants  and  highway  certificates  received  in  payment  for 241 

currency  received  for 241 

treasurer  of  state  to  receive  currency 241 

distress  and  sale  of  property 241 

notice   of  sale;  expenses;  proceeds 241 

deputies  appointed  to  aid  in 242 

when  resisted  aid  may  be  summoned 242 

taxes  certified  to  treasurer  of  another  county 242 

force  and  effect  of 242 

penalty  to  be  collected 242 

return  made  to  treasurer  sending 242 

when  delinquent,  become  lien  and  draw  interest 243 

penalty  after  delinquent 243 

treasurer  to  give  receipt  and  make  record 243 

apportion  consolidated  tax  monthly 243 

keep  account  with  each  fund 243 


INDEX.  413 

COLLECTION  OF  TAXES— Continued— 

when  erroneously  levied  may  be  refunded 244 

tax-sale,  when  made,  and  for  what 244 

notice,  what   to  contain 244 

publication  and   proof  of 244 

treasurer  to  collect  cost  of  publication 244 

each  tract  sold  separately 245 

who  deemed    purchaser 245 

to  be  continued  from   day  to  day 245 

when  purchaser  refuses  to  pay,  resale 245 

tax  may  be  paid  after  advertisement 245 

sale  not  affected  by  irregularity  of  notice 245 

certificate  of  publication  filed  with  auditor 245 

treasurer  to  keep  book  of  sales 246 

sales  may  be  adjourned 246 

penalty  on  treasurer  for  not  attending  sale 246 

purchasing  at  sale 246 

when  sale  not  made  in  October 246 

certificate  of  purchaser,  treasurer  to  give 247 

assignable,    how 247 

receipt  for  any  taxes  paid 247 

redemption,   how    effected 247 

certificate  of,  who  to  sign 247 

by  minors   and    lunatics 247 

by  action  in  court 248 

deed,  notice  of  right  to,  how  given 248 

made  after  ninety  days 249 

form  of 249 

effect  of 250 

»7/*^'i/jrt/^j,  purchaser  held  harmless  from 251 

interest  acquired  by,  in  school  land 251 

when  land  sold,  non-taxable 251 

sale  not  void  if  land  listed  in  wrong  name 252 

action  to  recover  barred  in  five  years 251 

acts  of  officers  deemed  valid  as  to   sale 251 

books  of  officers  evidence  of  sale 251 

peddlers,  tax  of:  how  made " 251 

license  how  granted 251 

in  township,  by  township  collectior 374 

powers  of 374 

duties  of 374 

to  give  notice  of  tax  list 375 

must  demand  taxes 375 

must  make  monthly  statement 375 

unpaid  taxes,  how  collected 375 

failure  to  collect 375 

liability  of  for  taxes .'578 

notice  of  to   tax  payers 37(5 

sale  of  property  for  taxes 378 

form  of  monthly  statement 377 

final   statement 377 

affidavit  of  unpaid   faxes 377 

cannot  distrain  exempt    property 377 

tax  list  has  force  of  execution  for  collection  of  taxes 378 

CONVEYANCE^ 

of  personal  property ,  when  conditional  to  be  recorded 277 

cf  real  properly,  not  against  purchasers  unless  recorded" 277 

not  to  be  recorded  until   acknowledged 278 

index  and  index  books  kept  for 278 

must  be  filed  with  and  indorsed  by  recorder 27B 

what  entrv  or  index  book  must  show 278 

must  be  recorded  promptly 278 

transfer  books,  kept  by  auditor 234 

form  of,  and  entries  in 234 

entries  to  be  made  by  auditor 234 


414  INDEX. 

CONVEYANCE— CONTINUKD— 

indorsement  on,  by  auditor 234 

correction  of 234 

acknow/edj^metit,  must  bo  made  before  recorded 278 

by  sheriff — when,  for  property  sold  on  execution 134 

person  entitled  to,  when  right  to  redeem  expires 134 

when  to  be  recorded 134 

is  presumptive  evidence  of  regularity 134 

of  property  sold  on  chattel  mortgage 156 

COMMISSIONS— 

public  improvement,  to  assess  damages  for  property  taken  for 147 

how  summoned 147 

appraisement :  how  made 148 

where  dwelling  house,  garden  or  orchard  is  affected 148 

talesmen  may  be  summoned,  when 148 

costs  of  how  paid 148 

report  of  may  be  recorded .  148 

to  take  depositions,  notice  to  be  given  of  appointment  of 68 

rules  to  govern 59 

notice  to  take,  how  served 59 

commission,  form   of 59 

instructions  for 59 

of  notary  public,  how  procured 321 

re-vocation   of 321 

COMMISIONER— 

of  highways,  how  appointed 229 

form  of  report  of 210 

COMMITMENT— 

of  person  charged  with  crime,  to  insane  hospital  when 166 

COMPENSATION— 

of  deputy,  how  provided 8 

for  publication  of  legal  notices 

printing  delinquent  tax  list 

arbitrators 

taking  depositions 

putting   up  advertisements 

for  bill  of  particulars 

of  clerk 71, 

of  sheriff  in  civil  cases       194 

criminal  cases 195 

of  supervisors 220 

of  township  officers 355,  366,  369,  373,  379 

CONDEMNATION  OF  PRIVATE  PROPERTY— 

«»«3««tfr  n/,  sheriff  to  summon  jury  to  assess  damages 147 

when  owner  of  property  is  minor  or  insane 147 

notice  to  non-resident  owner 147 

publication  of 148 

appraisement,  how  made  and  returned 148 

where  dwelling  house,  garden  or  orchard  is  affected 148 

vacancy  in  jury,  how  filled 148 

costs  paid  by  whom 148 

report  of  jury  recorded 148 

a//(f<z/ from  assessment  of  damages,  how  made 149 

not  to  delay  work  if  amount  deposited  with  sheriff 149 

when  appeal  barred 149 

railways,  may  be  condemned,  when 149 

x^a/tf  may  condemn  property,  when 150 

damages,  how  paid 150 

appraisers,  how  summoned 150 

form  of  application  for  appointment  of  appraisers 150 

notice  of  assessment  of  damages 151 


INDEX.  415 

CONDEMNATION  OF  PRIVATE  PROPERTY— Continued— 

appraiser's  report 151 

quarry  or  mine  owners  may  have  right  of  way 152 

proceedings  when  owner  refuses  right  of  way  to  mine  owners 152 

persons  condemning  may  establish  railway 153 

CONSTABLE— 

when  county  officer 4 

when  elected 4 

when  additional,  elected 4 

vacancy  of,  how  filled 3 

term  of  office  of 4 

election,  and  qualification  of 367 

vacancies,  how  filled 367 

duties  defined 367 

same  as  sheriff 368 

offenses  in  office 368 

fees  of 369 

summary  proceedings  against 370 

CONTEMPT— 

foam  of  writ  of  attachment  for  • 70 

CONTRACT— 

power  of  supervisors  to  make •  214 

for  sale  of  land,  form  of 396 

CORPORATIONS— 

municipal  cannot  be  garnished 99 

service  on,  how  made  of  notice  .    .    .    .     • 86 

CORONER— 

election   and   qualification 313 

duty,  may  act  as  sheriff,  when 311,  316 

process,  may  serve  when  sheriff  interested 311 

vacancy,  when  none;  nor  sheriff;  clerk  to  act 311 

inquest,  when  and  how  held 311 

return 311 

warrant,  form  of  for  jury 312 

service  of 312 

for  arrest  of  defendant 313,  315 

iubpcBnas,  for  witnesses 312 

witnesses,  oath  of 312 

fees    of 318 

/«/m(7»v,  must  be  reduced  to  writing 312 

form    of  taking 317 

verdict,  iorm  o^,o{  jury 312,  315,  316,  317 

disposition  of  body,   duty  of 313 

when  no  coroner,  justice  of  the  peace  may  act 313 

surgeons,    may  be  summoned 313 

fees  of ■    • 315 

special  coroner,  when  appointed 314 

discretion,  when  to  act 314 

certificate,  of,  form  of 318 

fees,  what  allowed 318 

attorney,  cannot   act  as 313 

liability,  when  acting  as  sheriff 314 

COSTS— 

form  of  entry  on  re-taxation  of 34 

order  for  security  for 35 

for   security    for 35 

clerk   to   tax 46 

clerk  liable  for  error  in  taxing  .    .        46 

bill  of,  on  appeal  to  be  made  by  clerk 68 

to  witnesses  to  be  paid  by  clerk 68 

of  locating  drains 350 


416  INDEX. 

COUNTER-CLAIM— 

form  of  entry  of  decree  on 37 

COUNTY  OFFICERS— 

when  elected 3 

term  of 3 

must  qualify  before  taking  oft'ice 4 

may  be  removed,  when 6 

resignations  of  made  to  supervisors 9 

vacancies  of   how  filled 9 

constables  and  justices  are 4 

COUNTY  SURVEYOR— 

election  and  qualification  of 282 

duties   enumerated 282 

when  establishing  corners 283 

to  follow  instructions  of  secretary  of  interior 283 

copy  of  plat  and  field-notes  presumptive  evidence 284 

supervisor  to  furnish  book  to 283 

plat  and  record  to  show  at  whose  request  survey  was  made 283 

chainrr.en  must  be  sworn  by 283 

may  issue  subpoenas  and  swear  witnesses 283 

form  of  oath  to  chainmen ■  .    .  283 

witnesses 284 

fees  of  officers  and  witnesses  before 284 

evidence,  field-notes  and  plat  as 284 

form  of  certificate  to  survey 284 

rules,  of  rectangular  surveymg 285 

measurements,  chaining  and  marking 286 

establishing  corner  boundaries 288 

corners  by  posts 288 

stones 290 

mounds 291 

double  comers 292 

meandering  of  streams 292 

field    books 294 

what  to  be   noted 295 

swamp   lands 296 

exterior  or  township  lines 297 

field-notes  of 300 

townships  north  of  base  line 297 

subdividing    townships 298 

field-notes  of      301 

sub-division  of  sections 303 

restoration  of  lost  corners 304 

_/f^/if-«o^«  of  government  surveyors,  how  construed 308 

monuments ,  what  they  are  evidence  of 308 

city  and  town  plats,  when  may  be  re-surveyed 309 

fees,  what   allowed 310 

CRIMES— 

penalty  for  receiving  bribe  by  officer 14 

refusing  to  execute  process ....  14 

extortion  by  officer 15 

compounding  felony 15 

suffering  prisoner  to  escape 15 

falsely  assuming  to  be  officer 15 

exercising  office  without  authority 15 

stirring  up  quarrels  by  officer 15 

misdemeanor,  when  none  other  prescribed 15 

making  false  entries  and  returns 16 

oppression  by  officer 16 

appropriating  fees,  by  officer 16 

failure  to  report  fines  and  fees  by  justices  and  clerks  .    ...  17 

improper  exercise  of  office  by  notary  public 17 

failure  to  take  oath  of  office 17 


INDEX.  417 

CRIMES— COXTI>fUED— 

warra^/,  for  arrest  issued  on  complaint *••...  169 

form  of,  to  whom '.   '.    '  169 

indorsement  of  when  for  misdemeanor [   ^    '  jgg 

how   and  where  served *    *  170 

when  felony  charged,  defendant  taken  before  magistrate  ...'.'.".    ".  170 

on  indictment,  alter  judgment '.    '    '  180 

dail,  taken  in  case  of  misdemeanor '    '    '  170 

when  given,  defendant  discharged ".'.'.".  170 

not  given,  taken  before  magistrate !.'.'.'."  171 

proceeding  after   arrest .    .    .    .  171 

arrest,  what  is *    ' yi\ 

by  whom  may  be  made !.*[."!'  171 

magistrate  may  orally  order !    !        '  171 

how  made  with  warrant •    •    •  ^^^ 

without  warrant  .    .■ !    !    !    !  171 

by  private  person '.    ,  171 

when  maybe  made .'!!***  171 

power  of  officer  when  resisted •    •    •  ^^^ 

may  break  and  enter  premises '.'.'.  172  174 

person  refusing  to  aid  in  making,  guilty   of  misdemeanor  .'  .'  .'.".".    .'  172 

unnecessary  force  not  to  be  used  in  making *.    '.  172 

offensive  weapons  taken  from  person  arrested 1 72 

re-arrest  in  case  of  escape '.".'.'.!!'  1 72 

when   arrest   made  by  bystander .'.'.'.'.*.'.'.".'  172 

private  person J72 

officer  with  warrant 172 

without  warrant I73  174 

must  not  arrest  wrong  person ...'.".".'.     '  1 75 

what  constitutes  arrest !!!!!!!!!"  174 

when  officer  justified,  though  party  not  found '...'.*.".'!.'  175 

magistrate,  may  order  information  filed '.'."..'.'.'.'.  173 

hearing  before  another  magistrate 1 73 

send  defendant  to  another  county  for  trial '.'.!'.  173 

commit,  discharge,  or  take  bail .  .  173 

when  offense  is  committed  in  another  county '..'.'.'.  173 

return  of  warrant  on  arrest 173 

CROSS-INTERROGATORIES— 

when   may  be  filed go 

DAMAGES— 

against  officer  for  stirring  up  quarrels I5 

sheriff  liable  for  wrongful  execution  of  writ  of  attachment,  when  .    .    '.    .  90 

how  paid  for  property  condemned .'  159 

for  non-payment  or  non-acceptance  of  notes 326 

for  drainage '.'.'.'''  349 

for  trespassing  animals '  354 

DEAF  AND  DUMB— 

clothing  account  of  in  asylum,  collected  by  treasurer 254 

DEED— 

who  entitled  to  on  execution  sales I34 

form  of.  by  sheriff,  of  real  estate 136 

by  sheriff  on  sale  of  lease-hold  interest    ...............  137 

of  trust  treated  as  mortgage Vob 

must  be  indorsed  by  auditor  before  recorded  .............  2.13 

to  be  given  purchaser  at  tax  sale 248 

form  of 249 

effect  of 2n0 

quit-claim,  form   of *  3()1 

warranty,  form  of '.    '.    .    .  sJlO 

acknowledgment  of 390 

27 


418  INDEX. 

DEED  OF  TRUST— 

is  deemed   a  mortgage 1C5 

DEMAND— 

note,  when  to  be  made  on  note 325,  320 

holdings,  what  are .326 

notice  of  protest,  how  served 32fi 

where  demand  made 230 

DEFAULT— 

form  of  entry  by  clerk  in  case  of 32 

DEPOSITION— 

clerk's  duty  relating  to 69 

notice  :  action  before  a  justice 58 

cross-interrogatories,  when  filed 59 

court  may  make  rules  for  taking 59 

notice  for  taking,  what  deemed 59 

how  served 69 

on  attorney 59 

by  filing  with  clerk 59 

commission  to  take,  how  issued 59 

form  of 69 

instructions  for  taking 00 

how  to  be  returned 63 

powers  of  notary  public  therein 320 

commission  to  take 58 

DEPUTY— 

what  officers  are  allowed 7 

principal  liable  for  acts  of 7 

must  give  bond  to  principal 7 

appointment  of,  how  revoked 8 

powers  of 8 

who  cannot  be 8 

number  of,  for  sheriff,  unlimited 8 

must  take  oath  of  principal 8 

supervisors  to  provide  compensation  of 8 

form  of  appointment  of •  .    .  22 

approval  of  appointment  of 23 

oath  of,  to  be  indorsed  on  appointment 23 

appointment  of,  revocable,  how  and  when ,   .  23 

form  of  revocation  of  appointment  of  .    .    , 23 

powers  of,  co-existent  with  principal 24 

auditor  may  appoint 225 

recorder  may  appoint 276 

DRAINS— 

supervisors  may  cause  to  be  made 204 

powers  and  duties  of  to\vnship  trustees  therein 349 

form  of  notice  of 351 

finding  and  decision  of  trustees 351 

DISTRICT  ATTORNEY— 

to  file  petition  for  removal  of  county  officers 7 

DOCKET— 

of  justices  to  be  filed  with  clerk 67 

ELECTION— 

general ,  when  held 3 

special,  when  may  be  held 3 

vacancies  shall  be  supplied  at  general 3 

county  officers,  elected  at  general 3 


INDEX.  419 

ELECTION— Continued— 

justice  and  constable,  when 4 

township  oj/icers,  when 4 

when  contested,  time  allowed  to  qualify 6 

when  to  fill  vacancies 10 

clerk,  when 19 

judges  of,  to  select  jurors 57 

when  contested,  clerk  to  issue  subpoenas 68 

officer  re-elected,  must  qualify 20 

supeT-visors,  when 197 

of  clerk,  contested,  auditor  to  be  clerk 225 

returns  of,  to  be  sent  to  secretary  of  state  by  auditor 224 

w/z^w //^  ^'<7^^  on  county  office,  duty  of  auditor 224 

treasurer,  when 236 

recorder,  when 276 

of  township  officers 335 

trustees  . 336 

clerk 356 

constable 367 

assessor 371 

collector 374 

of  coroner 313 

ESCAPE— 

penalty  for  suffering  prisoner  to  escape 15 

ESTRAYS— 

duty  of  auditor  relating  to 231 

EVIDENCE— 

copies  of  records  are 17 

return  on  original  notice  is,  of  what 87 

how  perpetuated,  of  service  of  notice  in  chattel  mortgage  sale 154 

certified  copies  of  books  of  treasurer,  are 252 

before  coroner,  how  taken 317 

EXECUTION— 

must  be  issued,  when 47 

must  be  entered  on  judgment  docket 47 

duty  of  clerk  when  issued  to  another  county 47 

what  it  must  contain 47 

if  for  money 47 

if  against  property 47 

if  for  delivery  of  property 47 

if  for  judgment  against  principal 47 

when  may  issue 47 

but  one  issued  at  a  time 47 

j/ayo/,  how  taken,  effect  of 48 

when  stayed  after  issued 48 

surety  may  have  issued 48 

form  of  bond  for  stay  of 48 

form  of,  for  money 60 

form  of  special 51 

fee  bill  has  force  of,  when 67 

form  of  fee  bill,  as 63 

when  it  may  issue 110 

judgments  inforccd  by 110 

may  issue  to  any  county 110 

when  may  issue  on  Sunday 110 

when  issued  to  another  county,  what  done Ill 

when  sent  to  another  county,  return  how  made Ill 

must  refer  to  the  judgment Ill 

when  issued  against  representative Ill 

when  for  delivery  of  property Ill 

when  for  performance  of  any  act Ill 


420  INDEX. 

EXECUTION— Continued— 

officer  must  give  receipt  for Ill 

what  officer  must  indorse  thereon Ill 

property  of  principal  first  liable 112 

property  of  surety  liable,  when 112 

to  state  order  of  liability  of  parties 112 

levy  of,  how  made 112 

what  property  must  be  taken 112 

judgments,  bank  bills,  etc.,  may  be  taken  on 112 

persons  indebted  to  defendant  in,  may  pay,  when 112 

public  property  exempt  from 112 

tax  levied  to  pay  corporate  debt  ..         113 

how  satisfied  against  stocks  of  corporation 113 

garnishment ,  proceedings  on,  by 113 

expiration  of,  does  not  affect  garnishment 113 

how  levied  on  partnership  property 133 

levy  of,  creates  a  lien  on  property 113,  115 

bond  for  release  of,  when   given 113 

levy  of  discharged,  if  bond  not  given,  when 114 

office  protected,  if  indemnifying  bond  good  when  taken 114 

rules  of  attachment,  apply  to 114 

proceeds  of  property,  sold,  when  bond  given,  how  disposed  of 114 

when  issued  by  justice,  how  governed 114 

duly  of  officer  on  receiving 114 

but  one  in  existence  at  a  time 115 

levy  must  be  made  before  return  day 115 

must  be  served  in  order  received 115 

when  plaintiff  may  order  return  of 115 

when  sufficient  property  levied  on,  officer  liable  for  debt 116 

officer  cannot  discharge 116 

cannot  be  served  on  property  wrongfully  obtained 110 

stay  of  ,  duty  of  sheriff 119 

when  stay  given,  property  released 119 

exemption,  property  exempt  from 119 

personal  earnings  exempt  from,  when 120 

exemption   of  team   defined 120 

no  waiver  of  exemption  rights 121 

debtor  may  dispose  of  exempt  property,  when 121 

when  debtor  turns  out  exempt  property,  effect  of 122 

personal  property  in  hands  of  widows,   exempt  from 122 

homestead  is  exempt  from 122 

property  exempt  from  enumerated 119 

homestead  of  head  of  family  exempt  from  .    .        122 

new  exempt  to  extent  of  old 122 

extent  of  may  be   contested 123 

liable  for  taxes 122 

liable  for  debts  prior  to  purchase 122 

embraces  leasehold  property 125 

interest  of  tenant  in   common 125 

sale,  under,  notice  of,  and  how  given 127,  130 

validity  of  sale  not  affected  if  notice  not  given 126,  130 

penalty  for  making  without  notice 126 

form  of  notice  of  levy  to  defendant 131 

sale 129 

notice  must  be  given  defendant  of  levy 130 

when  estate  is  larger  it  is  redeemable 129 

minority  of  heirs,  effect  of 129 

mutual  judgments  may  be  set  off 129 

sale  of  leasehold  of  less  than  two  years,  absolute 129 

court  to  award  execution      129 

lien,  person  interested  in  to  be  notified 129 

notice,  how   served 129 

of  judgment  against  executor  or  decedent,  how  inforced 129 

sale,  vacated  when  execution  not  a  lien 128 

money,  etc.,  appropriated   without  .    .        129 

officer  to  sell  according  to  plan  of 128 


INDEX.  421 

EXECUTION— Continued— 

property  again  offered  if  purchaser  fails  to  pay 128 

when  unsold  for  want  of  bidders  levy  holds  good 128 

occupying  defendant  to  be  served  with  notice  of 123 

overplus  produced  by  paid   defendant 127 

when  there  is  a  deficiency 127 

time  of,  to  be  fixed  in  notice 127 

officer  may  postpone  three  days 127 

only  the  interest  of  defendant  in  real  estate  to  be  appraised •    133 

return,  form  of  to 140 

form  of  in  replevin 146 

from  supreme  court  same  as  from  district  or  circuit  court 168 

sale  of  attached  property,  how   made 104 

EXECUTOR— 

duties  of  clerk  as  to 67 

EXEMPTION— 

limitation  of  in  garnishment 99 

of  property  from,  what   is 119 

from  execution,  "family"    defined 119,  120 

personal  earnings  for  ninety  days  .    .        .  ' 119,  120 

when  debtor  absconds,  exemption  extends  to  wife  or  children 120 

use  of  team  defined 120 

no  waiver  of  rights  of 121 

when  debtor  turns  out  exempt  property,  effect  of 122 

of  personal  property  in  hands  of  widow,  from  execution 122 

what  is  homestead 122 

debtor  may  dispose  of  exempt  property,  when 121 

EXTORTION— 

penalty  for 15 

FEES— 

of  clerk  generally 71 

for  drawing  certificate  not  attached  to  any  writing 11 

afifixing  official  seal 11 

making  transcript  of  record 11 

publication  of  legal  notices 11 

printing  delinquent  tax  list 11 

of  arbitrators 11 

for  taking  depositions 11 

for  putting  up  advertisements 12 

list  of,  to  be  posted  up  by  officer 12 

penalty  for  taking  illegal 12 

when  must  be  paid  m  advance 12 

when  are  payable  by  state  or  county 12 

when  to  be  paid  by  slate 12 

when  not  part  of  salary,  how  paid 12 

cannot  be  charged  unless  fixed  by  statute 73 

for  satisfaction  of  mortgage 64 

/cr  t/z>/«  of  jurors  to  be  paid  to  treasurer,  when 71 

unclaimed,  for  witness  to  be  paid  to  treasurer 63 

bill  of,  has  force  of  execution,  when 67 

bill  of,  to  be  furnished  by  clerk,  on  demand 67 

none  to  clerk  for  computing  amount  due  on  money  demand 46 

to  be  reported  to  supervisors 17 

penalty  for  appropriation  of 16 

penalty  for  falsely  entering 16 

of  sheriff,  in  civil  cases 194 

salary 194 

in  criminal  cases 195 

on  seizure  of  intoxicating  liquors 195 

for  carriage  hire 195 

on  sales  of  domestic  animals 196 

for  conveying  insane  pcmon  to  hospital 196 


422  INDEX. 

FEES— Continued— 

posting  advertisement 196 

delivering  insane  convicts  to  hospital 196 

when  acting  as  constable 19(5 

of  supervisors 220 

auditor 234 

treasurer 274 

recorder 280 

surveyor 310 

clerk 71 

county  officers  not  otherwise  fixed 11 

commission  to  take  deposition 1 1 

arbitrators 11 

appraisers 212 

for  laying  out  highways 212 

of  notary  public 331 

fence  viewers 340 

township   trustees 355 

clerk 366 

officers  and  witnesses  before  surveyor 284 

constable 364 

township  assessor 373 

collector 379 

of  witnesses  before  coroner 318 

of  surgeons  before  coroner 318 

FIELD  NOTES— 

of  county  surveyor,  when  evidence 284 

instructions  as  to •  294 

form  of,  of  township  lines 300 

sub-division  of  township 301 

of  government  surveyors,  how  construed 308 

of  county  surveyor  must  be  recorded 283 

surveyor  must  have  copy  of  original  survey 283 

FEE-BILL— 

form  of fiS 

has  force  of  execution,  when 67 

to  be  furnished  by  clerk  on  demand 67 

FELONY— 

penalty  for  compounding 15 

FRAUD— 

penalty  for  falsely  assuming  to  be  officer 15 

FENCE— 

proceedings  in  relation  to  partition 339 

penalty  for  failure  to  repair  or  re-build 340 

certificate  as  to  sufficiency  and  value  of 340 

disputes  as  to,  how  settled 341 

repair  of 341 

who  are  required  to  maintain 341 

proceedings  when  division  is  sought 341 

when  desired  not  to  inclose 341 

when  owner  incloses,  must  pay  for  portion 341 

division  of,  must  be  recorded •  341 

"  owner  "  and  "  fence  viewer  "  defined 342 

when  may  be  removed  on  another's  land 342 

may  be  built  on  line 342 

what  is  a  lawful  .    .        342 

where  stock  is  restrained 343 

parties  cannot  evade  the  law 344 

decision  of  fence  viewers  final 344 


INT>EX.  423 

FENCE  VIEWERS— 

township  trustees  are 339 

duty  of  as  to  partition  fence 339 

notice  of  hearing,  in  partition  fence 339 

form  of  trustee's  certificate 339 

penalty  for  failure  to  re-build  fence 339 

certificate  as  to  value  of  fence 340 

disputes  to  be  settled  by 341 

decision  of,  conclusive 344 

"  fence  viewer"  defined 342 

FERRIES— 

supervisors,  may  license 204 

FORECLOSURE— 

form  of  entry  by  clerk,  in  decree  for 32,  35 

minutes  of  by  clerk  on  records 64 

form  of  entry  of,  on  mortgage  recorded 64 

FAMILY— 

what    is,  defined 80 

GARNISHMENT— 

sheriff's    duty  in  relation  to 96 

how  effected -. 96 

proceedings  in,  on  execution 113 

form  of  notice  of 97 

form  of  directions  to  sheriff 98 

not  affected  by  expiration  of  execution 113 

form  of  questions  to  garnishee 98 

where  garnishee  desires  plaintiff  to  appear 99 

does  not  apply  to  municipal  corporations 99 

exemptions  and  limitations  of 99 

cannot  be  made  without  writ 99 

answer  of  garnishee,  how  made 99 

of  firm,  how  served 99 

mortgagee  of  personal  property,  subject   to 99 

property  in  hands  of  garnishee  released  by  bond 101 

GUARDIANS— 

bond  of,  to  be  recorded  by  clerk 67 

may  be  appointed  by  clerk,  when 71 

in  vacation,  appointed  by  clerk 68 

HABEAS  CORPUS— 

proceedmgs  in,  to  be  kept  by  clerk 68 

service,  who  may  serve 162 

how  served 162 

when  officer  may  arrest   defendant 162 

power  of  officer  in  making  arrest 162 

when  officer  takes  custody  of  plaintiff 162 

not  to  be  disobeyed  for  want  of  form 162 

penalty  for  eluding  service  of 163 

refusing  to  give  copy  of  process 163 

precept,  plaintiff  to  be  brought  before  court 163 

may  order  arrest  of  defendant 163 

how  precept  served 163 

may  commit  or  dscharge  defendant 163 

return,  iorm  of  return  to  writ 163 

HEAD  OF  FAMILY— 

property  of,  exempt  from  execution 120 

who  is 120 

exemption,  when  has  started  to  leave  the  state 120 

who  is  not 121 

cannot  claim  exemption  for  purch.-ise  money 120 


424  INDEX, 

HIGHWAYS— 

supervisors  may  establish,  alter,  etc 204,  217 

order  re-survey  of 204 

have  power  to  grade 218 

not  obliged  to  repair 218 

cannot  establish  beyond   terminus 218 

proceedings  to  establish,  not  void  if  irregular 217 

power  of  supervisors  over,  in  cities  and  towns 218 

appraisers  of  cannot  allow  for  benefits 218 

establishment  of,  not  annulled  by  certiorari 218 

records  of,  what  to  contain 205,207,  213 

who  to  keep 205 

liability  of  county  in  relation  to 217 

auditor,  to  appoint  commissioners  of 221) 

may  extend  time  to  commissioner 229 

when  he  may  establish 230 

proceedings  as  to,  to  be  recorded  by      200 

to  make  transcript  of  record  when  appeal  taken 2.30 

when  survey  made  to  give  notice 2.']! 

to  make  plat  book  of 2.31 

to  furnish  plat  book  to  township  clerk 231 

township  trustees,  duties  of  thereon 348 

time  of  meeting  of 348 

custody. of   implements 349 

township  clerk,  duties  of  defined 300 

bond,  for  costs  of  location  of,  form  of 398 

account,  between  road  supervisor  and  district,  form  of 309 

petition  to  establish,  alter  or  vacate,  form  of 3t)7 

supervisor's  receipt,   form  of "...  400 

HOMESTEAD - 

to  embrace  house  used  as  a  home 122,  124 

may  contain  more  than  one  tract  of  land 123,  125 

extent  of 123,  125 

of  head  of  family  exempt  from  execution 122 

widow  or  widower  deemed 122 

conveyance  of  invalid  unless  signed  by  husband  and  wife 122 

liable  for  taxes  and  mechanic's  liens 122 

for  debts  contracted  prior  to  purchase 122 

when  so  stipulated  in  writing 122 

husband  or  wife  may  select  and  have  platted .123,  125 

recorded 123 

limits  of,  may  be  changed 123,  125 

new  exempt  to  same  extent  as  old 123,  12(5 

extent  of  may  be  contested 123 

disagreement  as  to,   how  settled 123 

survivor  of  husband  or  wife  to  occupy 124 

selling  distributive  share,  deemed  disposal  of 124 

when  no  survivor  may  be  sold   to  pay  debts 124 

interest  of  tenant  in  common  may  be  sold 124 

subject  to  rights  of  survivor,  may  be  devised 124 

leasehold  property  may  be 125 

must  be  actually  used  as  such 125 

additions  made  to  under  verbal  contract  of  purchase 126 

temporary  absence,  does  not  affect  right   of 126 

owner  of  need  not  be  head  of  a  family 127 

may  be  sold  for  taxes  or  under  mortgage 127 

HUSBAND  AND  WIFE— 

may   select  homestead,    when 122,  125 

may  have  homestead  platted  and  recorded 123 

survivor  of  may  occupy  homestead 124 

IMPRISONMENT— 

at  hard  labor,  duty  to  prisoners loo 


INDEX.  425 

INDEX    BOOK— 

record  of  judgments  in  not  sufficient 41 

INFANTS— 

original   notice   must  be  served  on 85 

INJUNCTION— 

wlien  allowed 65 

form  of  bond  for 55 

form  of  writ  of 56 

service  of,  how  made 158 

penalty  for  refusing  to  serve  writ 158 

form  of  return  of  service 158 

INSANE  CONVICT— 

fees  of  officer  for  taking  to  hospital 196 

INTOXICATING  LIQUOR— 

fees  of  sheriff  for  seizing 195 

duty  of  auditor  relating  to  application  to  sell 231 

INVENTORY— 

of,  property  taken  on  search  warrant 178 

of  property  appraised  under  execution 132 

attachment 104 

seized  for  benefit  of  poor  person 336 

INSANE— 

service  of  original  notice  on,  how  made 85 

form  of  return  of  service  on 86 

to  hospital  how  paid 231 

expense  for  keeping  collected  by  auditor 231 

INSANITY— 

commitment  of  for,  when  charged  with  crime 166 

defendant  releases  bail •  lri6 

defendant  detained  in  hospital  until  sane 1G6 

expenses,  by  whom  paid 166 

INQUEST— 

when  to  be  held  of  dead  body 311 

duty  of  coroner 311 

warrant  for  jury 312 

service  of 312 

subpoenas  for  witnesses 312 

testimony  reduced  to  writing 312 

form  of  taking 317 

verdict  of  jury '.  312 

form  of 312,315,316,  317 

warrant  for  arrest  of  defendant 313 

form  of 315 

disposition  of  dead  body 313 

surgeons  may  be  summoned      313 

special  coroners,  when  appointed 314 

coroner  to  determine  when  to  act 314 

certificate  of  coroner 318 

fees  and  expenses  of,  how  paid •    •    .    .    .  318 

INSPECTOR— 

of  jails,  who  are 187 

to  visit  and  report 1  !^7 

report  to  district  court 187 

what  it  must  contain 1H7 

inspect  books  and  papers 187 

have  power  to  examine  witnesses 187 


426  INDEX. 

INTERPRETER— 

oath  of,  in  court 44 

INTERVENTION— 

in  attachment,  how  made  and  tried 91,  93 

JAILS— 

sheriff  has  charge  of 185 

for  what  used 185 

duty  of  Iceeper  of 185 

sheriff  relating  to 185 

what  prisoners  must  be  furnished 186 

jAtfr(^,  to  keep  calendar  of  prisoners 185 

to  furnish  copy  to  district  court 180 

prisoners  removed,  when  danger  by  fire 180 

form  of  calendar  and   certificate 18(5 

inspectors  of,  who  are 187 

to  visit  and  report 187 

report  to  district  court 187 

what  to  contain 187 

inspect  books  and  papers 187 

have  power  to  examine  witnesses  ....        187 

prisoners,  refractory  punished 187 

expenses  paid  by  county 187 

required  to  labor 188 

on  highway,  etc 188 

sheriff  or  marshal  to  superintend  labor 188 

may  use  means  to  prevent  escape 188 

to  be  credited  with  labor 188 

cruel  treatment  of,  punished 189 

any  person  annoying,  punished 189 

accounts  for  keeping  returned  to  supervisors 189 

JUDGMENT— 

in  criminal  cases,  how  executed 181 

when  for  commitment 181 

by  whom  executed 181 

when  for  fine  and  imprisonment 182 

officers  authority  in  executing 182 

return  of  officer  on  execution  of 182 

when  for  abatement  of  nuisance 182 

form  of  return  to  execution  of 182 

return  when  defendant  committed  to  penitentiary 182 

in  civil  cases,  form  of  record  of 32 

how  satisfied 91 

when  property  taken  for  internal  improvement 149 

on  bond,  in  replevin 146 

when  against  defendant  in  execution 128 

executor,  and  personal  estate  of  deceased  not  sufficient  to 

satisfy 129 

mutual,  may  be  set  off 129 

may  be  levied  upon 112 

must  recite  order  of  liability 112 

how  inforced,  when  for  money 110 

on  bond,  in  attachment 100 

must  be  recorded  in  docket 47 

entered  in  record 41 

form  of  entry  by  clerk 31 

JUDICIAL  NOTICE— 

courts  must  take,  of  officers  of  court • 191 

JUDGES  OF  ELECTION— 

to  select  jurors,  when 57 


INDEX.  437 

JUDGMENTS— 

on  removal  of  officers 7 

surety  for,  how  given 13 

must  be  entered  in  judgment  docket 41 

entry  of,  in  index  book  not  notice  to  third  parties 41 

form  of  entry  of,  by  confession  in  vacation 42 

orders  relating  to,  to  be  recorded  by  clerk 45 

docket  of,  to  contain  transcripts  from  sureties 67 

confession  of,  to  be  recorded  by  clerk 68 

how  satisfied 91 

when  for  defendant,  attached  property  to  be  returned  to  him 91 

to  be  inforced  by  execution 110 

must  recite  order  of  liability  on  execution 112 

may  be  taken  on  execution 112 

from  money  in  replevin,  when  exempt  from  execution 146 

form  of,  in  replevin 146 

JURORS— 

names  of,  must  be  recorded  by  clerk 28 

oath  of 42 

how  selected  by  clerk 45 

how  selected  and  summoned 57 

number  to  be  drawn 57 

when  fail  to  attend 57 

discharge  of 57 

lists  of,  how  made 57 

how  and  when  selected 67 

sheriff  to  notify  judges  of  election  of  apportionment  of 57 

to  be  selected  by  judges  of  election 57 

term  of  service  of 5g 

how  drawn 58 

grand,  not  summoned  after  first  term 58 

form  of  venire  for 70 

time  and  expenses  of,  to  be  reported  to  supervisors 70 

per  diem  fees  of,  to  be  paid  to  treasurer,  when 71 

auditor  to  draw  warrant  for  fees  of 234 

JURY— 

report  of,  for  sale  of  attached  perishable  property 105 

verdict  of,  in  action  of  replevin 146 

finding  of,  at  coroner's  inquest 312 

fees  of,  before  coroner 318 

warrant  for,  by  coroner 312 

JUSTICE   OF   THE   PEACE— 

when  elected 4 

when  additional  elected 4 

when  removed,  township  trustees  to  be  notified 9 

rules  to  govern   on  issuing  execution 114 

vacancy,  how  filled 348 

LANDS— 

form  of  entry  on  partition  of 38 

contract  for  sale  of,  form  of 396 

LAWS— 

copies  to  be  furnished  officers  and  institutions 234 

LEASE— 

form  of 395 

LIABILITY— 

of  county,  for  state   tax 252 

not  for  illegal  acts  of  treasurer 273 

of  sheriff,  and  deputies I  92 

of  sureties 193 

of  principal 193 


428  INDEX. 

LIABILITY— Continued— 

of  treasurer,   for  defalcation 252 

sureties  of  arc,  when 252,  273,  274 

fixed  by  official  bond 273 

for  taxes  partially  received 273 

discounting  county  warrants 253 

neglect  of  duty 254,  257 

for  using  public  money 254 

o/a«rfw^<>r,  for  school  fund  loaned 233 

is  neglect  of  duty 233 

of  sheriff,  for  non-performance  as  well  as  mal-performance 192 

for  sale  without  levy  and  notice 192 

of  sureties  of 192,  193 

of  supervisors,  for  misdemeanor  in  office 215 

of  recorder,  on  official  bond 279 

of  sureties  of 279 

of  coroner,  when  acting  as  sheriff 314 

of  constable,  for  money  collected 370 

of  township  collector,  for  loss  of  public  funds 376 

LEVY— 

in  attachment,  amount  of  to  be  made 92 

not  to  be  made  on  exempt  property ,93 

what   is  valid  in  attachment 93 

what  is  not  valid  in  attachment 94 

officer  may  break  open  buildings  to  make,  when 95 

when  made  property  vests  in  officer 95 

effect  of,  when  property  left  with  third  person 95 

upon  real  estate  how  made 96 

cannot  be  made  on  mortgaged  property 99 

of  execution,  how  made 112 

on  partnership  property,  how  made 113 

when  made  is  lien  on  property 113,  115 

if  not  made  before  return  day,  execution  dead 115 

when  made  on  sufficient  property,  officer  liable  for  debt 116 

cannot  be  made  on  property  wrongfully  severed  from  freehold 11 G 

officer  bound  to  levy  on  any  property  in  possession  of  defendant  ....  118 

form  of  indorsement  of  by  sheriff' 140 

discharged  w'hen  indemnifying  bond  not  given 114 

LIEN— 

when  attachment  is 100 

when   execution  is 113,  115 

taxes  become,   when    delinquent 243 

for  damages  by  trespassing  animals 352 

notice  of,  how   served 129 

how  enforced  against  executor 129 

LIMITATION- 
OS  to  garnishment 99 

of  right  of  action   against  sheriff  for  neglect 193 

of  action  to  recover  property  sold  for  taxes 251,  272 

LOANS— 

of  public  money  to  be  secured,  how 14 

MAGISTRATE— 

may  order  information  filed 173 

hearing  before   another  magistrate 173 

send  defendant  to  another  county  for  trial 173 

commit,  discharge,  or  take  bail 173 

when  offense  is  committed  in  another  county 173 

return  of  warrant  on  arrest 173 

MANDAMUS— 

service  and  return  of 165 


INDEX.  429 

MARRIAGES— 

duties  of  clerk  as  to 67 

MILITIA— 

register  of  to  be  kept  by  auditor 231 

township  assessor  to  make  list  of 372 

MINORS— 

service  of  original  notice  on,  how  made 85 

form  of  return  of  service  on 86 

MISDEMEANOR— 

what   is 16 

bail  in    case  of •    •    .  ■ 170 

warrant  of  arrest  for „    „   « 169 

bail  in  case  of 170 

refusing  to  aid  in  arrest,  is 172 

supervisors    liable  for 215 

MONEY— 

deposit  of,  instead  of  delivery  of  litigant  property,  when 14 

may  be  attached 112 

how  disposed  of 116 

MORTGAGE— 

form  of  entry  of  satisfaction  of 64 

foreclosure  of,  to  be  recorded  by  clerk 64 

form  of  entry  of  foreclosure  on  record 64 

of  personal  property,  foreclosure  of 154 

notice  of,  to  describe 154 

on  whom  to  be  served 154,  155 

service  and  return  of 154 

must  be  published 154 

purchaser  to  take  title  and  interest  of  mortgagee 154 

sheriff  to  execute  bill  of  sale  to  purchaser 154 

evidence  of  service,  how  perpetuated      ,    „ 154 

affidavit  to  be  attached  to  bill  of  sale 154 

purchaser  not  affected  by  equities  between  mortgagor  and  mortgagee  .    .  155 

right  to  foreclose  may  be  contested 155 

deeds  of  trust  treated  as  mortgage 155 

form  of  sale  of,  under 155 

bill  of  sale 156 

balance  after  sale,  how  disposed  of 156 

form  of  chattel 393 

satisfaction  of 394 

MORTGAGEE— 

of  personal  property  may  be  garnished 99 


MOTIONS— 

service  of,  how  made  .    .        167 

return  of  service,  how  made 167 

when  court  may  direct  service  of 167 

NON-USER— 

by  railway,  right  of  way  may  be  condemned 149 

NOTARY  PUBLIC— 

penalty  for  improper  exercise  of  office 17 

powers  of 320,  321 

for  what  time  appointed 321 

what  done  before  commission  issued 321 

petition  for  appointment 323 

bond  of 323 

r^currf  must  be  kept  of  notices  sent 321,  330 

attested  copies  of,  to  be  furnished  by  clerk 68 


430  INDEX. 

NOTARY  PUBLIC— Continued— 

vacancy,  where  to  deposit  records 321 

depositions,  may  take 321 

instructions  for 58 

protest,  days  of  grace 325 

guaranty  defined 325 

guarantor,  how  charged 325 

demand,  wlien  and  where  made 325,  326 

hoHdays,  what  are 325 

notice  of,  how  served 325 

forms  of 328 

damages  for  non-acceptance  or  non-payment 326 

mode  of  computing  time 326 

acknowledgments  and  evidence 331 

clerk  to  give  copy  of  records  of,  wlien 68 

fees  of 331 

NOTE— 

days  of  grace 325 

indorser  of,  how   charged 325 

guarantee  of,  what  is 325 

guarantor  of  how  charged 325 

demand  on,  when  to  be  made 325 

where  to  be  made 326 

protest  of,  when  and  how  made 235 

mode  of  computing  time 326 

forms  of  protest  of 328 

promissory,  form  of 389 

contract,  form  of 389 

NOTICE— 

to  take  deposition 58 

of  garnishment 97 

to  defendant  on  sale  of  perishable  property 105 

of  sheriff's  sale 129,  155 

to  defendant  of  levy 131 

form  of  entry  by  clerk  on  judgment  on 32 

of  assessment  of  property  condemned 151 

of  hearing  on  vacation  of  town  plat  to  be  given  by  clerk 71 

to  non-resident  owner  of  condemned  property 148 

of  assessment  of  damages  for  public  improvement 151 

auditor  to  give,  of  vacancy  in  township  offices 225 

treasurer  to  give,  when  land  sold  for  taxes 241 

of  sale  of  delinquent  taxes 244 

of  protest  by  notary  public 326 

of  fence  viewers  ....•* 339 

for  location  of  drain 35I 

of  sale  of  trespassing  stock 354 

of  elected  ofificers  to  be  posted  by  township  clerk 359 

to  supervisors  of  roads  to  work  highways 301 

of  township  collector  to  tax  payers 376 

NORMAL  INSTITUTES— 

treasurer  custodian  of  accounts  of 257 

NUISANCE— 

form  of.  return  on,  abatement  of 183 

powers  of  board  of  health  as  to 346 

OATH— 

form  of,  on  bond  of  civil  officer 4 

who  may  administer  „ 13 

form  of  official 21 

of  deputy  to  be  indorsed  on  appointment 23 

not  required  when  new  bond  given 25 

in  court,  by  whom  administered 42 

forms  of,  in  court 42 


IKTDEX.  431 

OATH— Continued— 

of  witness  in  court 43 

cf  interpreter  in  court 44 

of  bailiff  in  court 44 

of  attorney,  before  court 44 

form  of,  of  appraisers  of  attached  property 103 

of  officer  to  return  of  search  warrant 178 

of  appraisers  of  perishable  property,  when  attached 104 

supervisors  must  tal-:e,  of  office 203 

penalty  for  exercising  office  without  taking 17 

county  surveyor  may  administer 283 

of  surveyor's  chainmen 283 

of  witnesses  to  establish  corners 284 

of  witnesses  before  coroner 314 

of  notary  public 324 

of  township  clerk 356 

of  township  officers  to  be  recorded  by  clerk 357 

OFFICE— 

term  of,  to  commence  when 3 

qualification  for 4 

when  civil,  becomes  vacant 9 

resignation  of,  how  inade 9 

vacancy  in,  how  filled *    *    .• 9 

term  of,  until  successor  qualified 10 

vacancy  in,  who  to  take  possession 10 

penalty  for  exercising,  without  taking  oath 17 

OFFICERS— 

of  county,  when  elected 3 

of  township,  when  elected 4 

must  qualify  before  taking  office 4 

must   give    bond 4 

justices  and  constables  are  county,  when 4 

of  township,  who  are 4 

of  township,   term  of 4 

oath  of,  on  bond • 4 

bonds  of    how  given 5 

amount  of  bond  of  county 4 

bond  of,  must  have  two  sureties 5 

bonds  of,  where  recorded 5 

penalty  for  not  recording  bond  of 5 

when    must  qualify 6 

failure  to  qualify,  deemed  refusal  to  serve 6 

bonds  of,  how  construed 6 

bond  of,  valid  though  not  statutory 6 

temporary  must   qualify 6 

removal  of,  causes  for •       ...  6 

how  tried  for  removal 7 

when   may   be   suspended 7 

proceedings  for  removal  of,  in  district  court 7 

what   may  appoint  deputies 7 

when  fees  of  to  be  ]iaid J  2 

to  be  furnished  fuel  and  stationery 12 

liability  of  for  taking  insufficient  surety ' 13 

penalty  for  neglect  ofduty  Ijy 14 

falsely  assuming  to  be 15 

exercising  office  without  authority 15 

falsely  entering  Iocs  by,  is  misdemeanor 16 

penalty  for  appropriation  of  fees • 16 

oppn^ssion  by 16 

power  of  when   process  resisted 18 

can  take  only  fees  fixed  by  statute 71 

duty  of,  on  order  for   replevin 142 

of  township,  qualification  and  duties  of 3I>5 

elected    annually 335 


432  INDEX. 

OFFICERS— Continued— 

election    of    township '^5 

when  township  contains  city  or  town 335 

of  annually 3.55 

additional  justices  and  constables 335 

refusing  to  serve 335 

dejtire,  who  is ^^^ 

de  facto,  who  is "^^" 

must  have  color  of  right 380 

there  must  be  an  office 380 

distinction  defined 381 

ORIGINAL  NOTICE— 

time  when  received  must  be  indorsed  thereon 79 

return  to,  when  personally  served 78 

how  served  on  individuals 78 

when  delivered  to  sheriff 78 

how  to  be  signed 78 

penalty  for  defective  return  on '9 

how  served "" 

service  of,  when  defendant  not  found 80 

officer  must  use  dilligence,  to  serve 80 

service  of  by  copy,  how  made 80 

form  of  return  on,  on  personal  service 81 

return  on,  when  served  on  several   defendants 80 

form  of  admission  of  service  of ■ 82 

how  served  on  firm 82 

service  of,  when  county  defendant 82 

corporation  defendant 83 

form  of  return  on,  where  cotinty,  defendant 83 

return  of  service  by  copy 83 

how  served  on  corporation 83 

railroad  company 84 

when  may  be  served  on  agents 84 

return  of  service  of,  on  railroad  corporation 84 

service  of,  on  minors,  how  made 85 

service  of,  on  insane,  how  made 85 

prisoner,  how  made 85 

must  be  served  on  infant 85 

what  necessary,  when  served  on  superintendent  of  insane  asylum  .    ...  86 

return  on,  when  service  cannot  be  made 86 

when  may  be  served  on  Sunday 87 

return  on,  is  evidence  of  matters  therein  stated 87 

ORPHANS— 

duties  of  clerk  as  to 67 

PARTNERSHIP— 

notice  how  served  on 82 

property  of,  how  taken  on  execution 113 

PAUPERS— 

to  be  indentured  by  clerk 67 

may  be  cared  for,  by  supervisors 204 

township  trustees  may  warn  to  depart 337 

remove,  when 337 

afford  relief  to 337 

expenses,  how  paid 338 

PAYMENTS— 

when  treasurer  to  settle  with  supervisors 253,  254 

pay  state   treasurer 253 

make  through  banks 253 

when  and  how  county  warrants  to  be  paid 236 

warrants  received  for  taxes 241 

currency  received  for  taxes 241 


INDEX.  433 

PEDDLERS— 

are  required  to  pay  tax 252 

wholesale,  are  exempt 252 

license  for,  how  obtained 252 

PENALTY— 

for  failure  to  record  official  bond 5 

for  taking  more   fees  than  allowed 12 

for  false  affirmation 13 

for  receiving  bribes 14 

for  refusal  to  execute  process 14 

for  extortion 15 

for  compounding  felony 15 

for  allowing  prisoner  to  escape 15 

for  exercising  official  duty  without  authority 15 

for  stirring  up  quarrels  by  officer 15 

for  neglect  of  duty 16 

when  none  other  provided 16 

for  making  false  entries  and  returns 16 

for  oppression  by  office 16 

for  failing  to  pay  over  fees 16 

for  appropriation  of  fees 16 

for  failure  of  officers  to  report  to  supervisors 17 

for  failure  of  officers  to  report  fees  to  supervisors 17 

for  exercising  office  without  taking  oath 17 

for  falsely   entering  fees 16 

for  defective  return  on  original  notice 79 

for  making  sale  without   notice 126 

for  eluding  habeas  corpus  writ IfiS 

siiperviso7-s,  against  supervisors,  for  neglect  of  duty 198 

of  treasurer,  for  failure  of  duty 254,  257 

discounting  county  warrants 253 

loaning  or  using  public  money 254 

auditor,  for  neglect  of,  relating  to  school  fund 233 

taxes,  for  delinquent  taxes 243,  254 

on  treasurer  and  auditor  for  neglect 246,  254,  257 

jA^r/^,  for  making  execution  sale  without  notice 127 

disobedience  of  injunction  writ 158 

cruel  treatment  of  prisoners 189 

sale  without  levy 192 

fence,  for  failure  to  rebuild 3.';9 

township  assessors,  for  neglect  of  duty 372 

PERISHABLE  PROPERTY— 

form  of  notice  to  attachment  defendant,  owner   of 104 

how  attached,  and  disposed  of  .    .    •    ' 104 

when  to  be  appraised 104 

PETITION— 

for  suspension,  by  district  attorney 7 

for  appointment  of  notary  public 323 

to  establish,  vacate,  or  alter  highway,   form  of 397 

PLATS— 

of  land  to  be  recorded,  when 224 

of  town  or  city,  vacated;  proceedings  in 27t> 

to  be  recorded 276 

not  to  be   recorded  if  property  encumbered 281 

county  surveyor,  when  to  furnish 283 

what  to  show 283 

re-survey  of  city  and  town 309 

township  clerk  to  furnish  road  supervisor  with,  of  road 300 

PLAT   IJOOK- 

entries  in,  how  made 233 

of  highway,  form  of 210 

28 


434  iin)EX. 

POLL  BOOKS— 

to  be  furnished  by  auditor 224 

to  be  presented  by  township  clerk 357 

POOR  HOUSE— 

may  be  established  by  supervisors 204 

township  trustees  have  care  of 378 

POWERS— 

of  board  of  supervisors  enumerated 198 

sheriff 76 

township  trustees 330 

notary  public .' 320 

constable 368 

township  assessor 371 

collector 374 

POWER  OF  ATTORNEY— 

form  of 395 

PRECEPT— 

for  juror,  when  set  aside 58 

how  and  when  issued 58 

form  of,  and  effect  of  in  habeas  corpus 163 

PRISONER— 

service  of  original  notice  on,  how  made 85 

sheriff  has  care  of  in  jail 185 

what  furnished  to 186 

refractory  may  be  punished 187 

may  be  required  to  labor 188 

shall  be  credited  for  labor 189 

cruel  treatment  of,  punished 189 

duty  of  officer  in  charge  of 189 

PROBATE— 

form  of  entry  of  probate  of  will 40 

duties  of  clerk  in 40,  G7 

PROCEEDINGS  AUXILIARY  TO  EXECUTION— 

receiver  appointed  to  take  charge   of  property 138 

may  sell  and  convey  interest  of  debtor 1 38 

sheriff  may   be 138 

PROCESS— 

resistance  to  :  power  of  officer 18 

clerk — duty  of  clerk  in  relation  to ' 47,  67 

sheriff  may  execute  when  out  of  office 76 

when  may  be  served  by  successor _ 77 

return  of,  what  it  should  show 80 

return  on,  when  served  on  several  defendants 81 

attachment,  how  effected 89 

sheriff 's  duty  relative  to  execution 110 

garnishment,  how  effected 96 

constable,  powers  equal  to  sheriff 368 

when  coroner  may  serve 311 

PROTEST— 

duties  of  notary  public  as  to 324 

days  of  grace 325 

guarranty  defined 325 

guarantor,  how  charged  ...•■' 35 

demand  when  and  where  made 325,  330 

holidays,  what  are 325 

notices  of,  how  served 325 

forms  of 328 


iinjEx.  435 

PROTEST— Continued— 

damages  for  non-acceptance  or  non-payment 328 

mode  of  computing  time 32g 

fees  of  notary  for \    \  33j 

PUBLICATION— 

of  proceedings  of  supervisors,  how  made 200  215 

of  delinquent  tax  list,  how  made *  '  244 

QUALIFICATION— 

civil  officers  must  give a 

of  officers,  when  to  be  made \  5 

failure  to  qualify,  deemed  refusal  to  serve ■.....*.'  6 

time  for,  extended  when  election  contested ]  g 

appointed  officer  must  qualify  as  if  elected .    .  10 

of  clerk '    '  |g 

necessary  when  officer  re-elected '\  20 

officer  holding  over  must  qualify \    [  20 

of  sheriff .'    .'    '  74 

supervisors !!!!!.'  203 

auditor 221 

treasurer 2S6 

recorder 276 

sur%'eyor 282 

coroner 3^3 

notary  public .*.*.*.'.'  323 

township  clerk '.*.*.*..  356 


constables 


367 


township  assessor 3171 


collector 


374 


QUARRELS— 

officer  liable  for  stirring  up  quarrels J5 

RAILROAD— 

original  notice,  how  served  on g^ 

service  of  notice  on  corporation *      g^ 

return  of  service  of  notice  on !    !    '  '      84 

when  abandoned  may  be  condemned ]4g 

may  be  established  to  quarries  and  mines \    I53 

serpervisor  may  cause  statement  of  property  of,  made .    204 

statement  of  property  sent  to  taxing  districts  by  auditor *.,'.*  231 

taxes  on  property  of,  collected  by  treasurer .'    !    !  !    254 

REAL  ESTATE— 


how  attached 


96 


conveyance  of,  must  be  recorded 278 

not  recorded  until  indorsed \    \  278 

acknowledged 278 

form  of  mortgage  of *.    '    *    '  391 

RECEIVER— 

bond  of,  to  be  approved  by  clerk pg 

how  appointed,  when  property  attached !!!'.!  90 

when  sheriff  may  be !.!!!!!  138 

RECORD— 

copies  of  are  evidence ji» 

officer  bound  to  give  copies  of,  when jy 

clerk — form  of  entry  on  organization  of  court .    .    .  28 

•             civil  cause  tried  by  court "       '  32 

default,  judgment  and  decree "  ."  .    .32  35 

in  cause  on  plea'  of  guilty \     '  30 

in  criminal  cause  tried  by  jury \    [  31 

judgment  on  note,  and   decree  of  foreclosure  after  default  .    .  32 

on  re-taxation  of  costs 34 


436  INDEX. 

RECORD— Continued— 

clerk — form  of  order  for  security  for  costs 35 

for  attachment 35 

on  partition  of  lands 38 

probate  of  will 40 

must  contain  order  relating  to  judgments 45 

complete,  when   to   make 46 

what  to  be  made  of  process 47 

may  be  certified  by  clerk 65 

judicial,  how   proved 65 

form  of  certificate  of  records 05 

attested  copies  of,  of  notaries  to  be  furnished  by  clerk 68 

of  supervisors ,  what  are 201 

auditors,  what  to  keep 205 

of  supervisors,  kept  by  auditor 205 

of  township  clerk,  how  kept 305 

notary  public  must  keep 321,  330 

RECORDER— 

bond  of 5 

bond  of  sureties  on 5 

may  appoint  deputy 7,  276 

has  control   of  advertisements 12 

election  of 276 

qualification  of 276 

vacancy  of 276 

removal  of 276 

misdemeanor  of 276 

duties  of,  defined .  276 

treasurer  may  be 276 

when  town  or  city  plant   vacated,  duty   of 276 

records — to  be  kept  of  sales  affecting  personal  property 277 

real  property 277 

to  keep  record  of  mortgages 277 

original  entries 279 

index  of  mortgages 277 

deeds 278 

to  indorse  time  of  filing  instruments 277 

must  record  instruments  promptly 277,  278 

effect  of  unrecorded  instruments 277 

instrument  not  legally  recorded  unless  acknowledged 278 

entries  of  instruments   made    alphabetically 278 

deeds  of  town  lots  recorded  in  separate  book 278 

cannot  file  instruments  until  transfer  made 278 

certified  copy  of,  records  as  evidence 279 

form  of  certificate  of  record ...  279 

statutes  as  to  instruments  to  be  strictly  followed 278 

how  far  index  is  notice  to    third  parties 278 

instrument  acknowledged  by  interested  party  not  to  be  recorded  ....  279 

liability  of,  for  neglect  of  duty  on  bond 279 

sureties  on  official  bond 279 

abstracts,  may  make  abstract  of  lands 280 

not  an  official  act 280 

form  of  abstract 280 

fees,  what  entitled  to 280 

/ow>«  cr  c//y//(7/'j,  cannot  be  recorded  unless  free  from  incumbrance.    .    .    .  281 

tax  sales,  must  attend,  where  two  county  seats 281 

banks,  duties  relating  to 281 

REDEMPTION— 

tfx^(r«/w«,  of  real  property  sold  under  execution .*  .    .  134 

none,  when  stay  or  appeal  taken 134 

creditors  have  right  of 134 

redemptioner  entitled  to  certificate  of  purchase 134 

right  of,  extends  to  all  parcels  sold 134 

tenants  in  common 134 


INDEX.  437 

REDEMPTION— Continued. 

rights  of,  transferable 134 

when  not  made  deed  to  be  given 134 

when  evidence  of  purchase  to  be  recorded 134 

deeds  imply  regularity  .    ■. 135 

no  right  of,  after  sale  of  leasehold,  when 137 

AzjTifj^,  when  property  sold  for,  how  effected 247 

certificate  of,  to  be  given 248 

of  property  of  minors  and  lunatics 248 

how  effected  after  deed  made 248 

REGISTRY— 

township  trustees  is  board  of 358 

of  election,  what  to  contain 358 

board,  where  to  meet 359 

to  appoint  clerk 359 

in  new  townships 359 

when  law  of  does  not  apply 359 

REMISSION— 

of  penalty  and  interest  on  taxes,  when 254 

REMOVAL^ 

of  officers,   when 6 

charges  for,  by  whom  made 7 

judgment  for,  of  officer 7 

of  justice  of  the  peace,  township  trustees  to  be  notified 9 

of  appointed  officer,  hosv  made,  effect  of 10 

REPLEVIN— 

writ,  when  writ  of  to  be  granted 54 

may  issue  to  another  county 54 

bond,  form  of  bond  in 54 

writ  of 55 

duty  of  sheriff  therein 142 

RESIGNATION— 

of  civil  officer,  how  made 9 

right  to  make  absolute 22 

of  supervisor,  when  deemed 197 

of  civil  officer,  how  made 9 

right  of,  absolute 22 

RETURN— 

of  deposition,    how  made  ., 63 

of  original  notice,  when  personally  served 79 

penalty  for  defective,  on  original  notice .  79 

what  it  must  show,  when  service  made  by  copy 80 

form  of  personal  service 80 

of  process,  what  it  should  show 81 

how  made,  when  process  served  on  several  defendants 81 

form  of,  on  service  on  a  firm 82 

of  service  by  copy 83 

where  county  defendant 83 

of  service  of  notice  on  railroad  corporation 84 

what  it  must  show  when  notice  served  on  infant 85 

form  of,  of  service  on  minor 86 

insane 86 

on  original  notice  where  service  cannot  be  made 86 

of  service,  what  it  is  evidence  of 87 

on  attachment,  what  it  must  show 91 

to  writ  of  attachment,  what  it  must  contain 107 

form  of,  to  attachment  writ 107 

when  should  be  made  on  attachment  writ 109 

on' writ,  is  evidence  of  what 109 

on  writ  maybe  amended,  when 109 


438  INDEX. 

REDEMPTION— Continued— 

^jr««//<7n-^when  plaintiff  may  order,  of  execution 115 

to  execution  when  defendant  committed  to  penitentiary 182 

form  of,  to  execution       140 

of  order  in  replevin,  how  made 14."? 

replevin —  to  writ  of  replevin,  how  made 144 

mortgage — on  notice  of  mortgage  sale 154 

stibpcena — form  of,  on  subpo:;na 169 

certiorari — of  service  on  writ  of  certiorari IGI 

habeas  corpus — on  writ  of  habeas  corpus 1(53 

search  'uiarrant — form  of,  on  search  warrant 178 

nuisance — on  abatement  of  nuisance 183 

REPLEVIN— 

clerk  to  issue  order  in 142 

order  to  follow  property 142 

how  executed 142 

defendant  examined,  to  discover  property 142 

property  delivered    to   plaintiff 143 

defendant  may  prevent    delivery 143 

must  lot  plaintiff  examine   property 143 

sheriff  must  return  order 143 

bond,  given,  property  retained 143 

form  of  bond,  when  property  retained 143 

bond  in,  who   to  approve 144 

amount  of,  and  appraisement 144 

form  of  return  to  writ  of 145 

trial  in,  action,  what  jury   must   do 146 

form  of  judgment 146 

judgment  on  bond 146 

proceedings  when  property  concealed 146 

money  judgment,  exempt,  same  as  property 146 

REVENUE— 

a«d?//i3r  to  make  abstract  of  property  to  auditor  of  state 226 

to  correct  assessment  lists 226 

to  consolidate  taxes  on  list 227 

duty  in  relation  to  taxbook 227 

when  to  deliver  tax  list  to  treasurer 227 

certify  tax  list  to  state  auditor 228 

to  keep  accounts  with  treasurer 228 

to  attend  tax  sales 228 

cannot  purchase  at  tax  sales 229 

to  issue  certificate  of  redemption > 229 

to  receive  all  funds  of  county 236 

treasurer  to  deliver  township  collector  duplicate  tax  list 238 

when  bond  issued,  duty  of 237 

to  pay  taxes  of  city  or  town  to  treasurer  thereof 239 

to  pay  over  taxes  collected  for  township  board  of  health 239 

to  collect  unpaid  taxes 239 

to  notify  owner  of  land  sold  for  taxes 240 

to  assess  property  omitted  for  taxation 241 

to  keep  account  of  funds  separate 258 

to  make  settlement  of  accounts 253 

r^cort/^r  must  attend  tax  sales  where  two  county  seats 281 

^<?w«jA/^ /rai/tvj  may  equalize  assessment  of  taxes 345 

a^JWJ^or  must  list  taxable  property,  when 372 

collector,  powers  and  duties  of 374 

REVOCATION— 

of  appointment  of  deputy 23 

SUBPCENAS— 

to  witnesses  on  hearing  of  officer  for  removal 9 

how  served  and  returned 159 


INDEX.  439 

RIOT— 

what  officers  have  power  to  suppress IS 

duty  ol  officers  to  suppress *  .    .    .    .  18 

SALE— 

under  execu/iofi,  notice  of,  to  he  given 126 

how  given 126,  130 

not  affected  if  none  given 126,  130 

penalty  for  selhng  without  notice 126 

time  of  to  be  fixed  in  notice 127 

officer  may  postpone 127 

levy  holds  good  where  failure  to  sell 127 

disposition  of  surplus   by  officer 127 

defendant  to  be  notified  of 130,  127 

may  require  real  estate  to  be  sold  in  parcels 127 

of  lease  hold  of  real  estate,  when  absolute 129 

redeemable 129 

when  judgment  is  against  executor •  .    .    .  129 

by  sheriff,  form  of  notice 129 

form  of  notice  to  defendant  of  levy  on  land 131 

personal  property  must  be  appraised 132 

ibrrn  of  appraisement  of  personal  property 132 

sheriff's  deed  after  sale 136 

redemption,  real  property  may  be  redeemed 134 

not  where  appeal  or  stay  taken 134 

creditor  may  redeem 134 

redemptioner  entitled  to  certificate  of  purchase 134 

when  sold  in  parcels  any  one  may  be  redemed 134 

undivided  portions  of  tenants  in  common  may  be 134 

rights  of  defendants  transferrable 134 

deed  executed  to  person  entitled  to 134 

evidence  of  purchase,  when  to  be  recorded 134 

deed  implies  regularity 135 

form  of  certificate   of 135 

time  of,  how   computed 140 

decisions,  sales  presumed  regular 138 

an  attorney  cannot  adjourn 138 

not  set  aside  for  inadequacy  of  price 138 

when  en  fnasse  of  land,  set  aside,  when 139 

officer  must  exercise  discretion 139 

proceedings  when  bidder  fails  to  pay 139 

mortgage,  bill  of,  under •    • 156 

form  of,  under 155 

balance  after,  under  mortgage  how  disposed  of 157 

iaxes,  for,  when  and  how  made 241 

notice  of,  when  and  how  made 241 

who  deemed  purchaser 245 

homestead  liable  to,  for  when 245 

property  how  redeemed,  when  sold  for 247 

records,  instruments  affecting  personal  property  to  be  recorded 277 

also  of  real  property 277 

instruments  of,  not  recorded  unless  acknowledged 278 

annitnals,  for  trespass  by  township  trustees 354 

SATISFACTION— 

of  judgment,  how  made 91 

of  mortgage,  how  recorded 64 

form  of,  of  mortgage 394 

SCHOOLS— 

auditor  to  certify  election  of  superintendent 232 

SCHOOL  FUND— 

auditor,  to  apportion  county  tax,   etc 232 

to  issue  warrant  for  amount  due  each  district 232 

to  report  to  state  auditor,  funds  in  hands  of  treasurer 232 


440  INDEX. 

SCHOOL  FUND— Continued— 

auditor,  to  report  delinquencies  in 232 

■•             money  received  and  paid  out 232 

liable  on  bond  for  money  loaned 233 

to  keep  account  of,  with  treasurer 233 

to  annually   report  sales  of  school  land 233 

liable  to  tine  for  neglect  of  duty,  as  to 233 

treasurer,  to  pay  loans  from  by  auditor 25(5 

township  trustees  to  have  care  of 365 

SCHOOL  LAND— 

interest  acquired  by  purchaser,  when  sold  for  taxes 251 

SCHOOL  TAX— 

treasurer  must  pay  over  to  district  officer 256 

SEARCH  WARRANT— 

by  whom   served ]  76 

officer  may  break  doors 176 

must  be  served  in  day  time,  unless 176 

returned  in  ten  days 176 

officer  to  I  eceipt  for  property  taken 176 

inventory  of  property  returned  to  magistrate 176 

officer  must  not  exceed  authority 176 

person  charged  with  felony  may  be  searched 176 

stolen  property  held  for  identification 176 

officer  must  follow  directions  in 177 

when  house  of  firm  to  be  searched,  rule  of. 177 

property  must  be  particularly  described  in •    .  178 

form  of,  return  of,  service  of 178 

SERVICE— 

of  original  notice,  how  made 79 

when  defendant  not  found 80 

by  copy,   how  made 80 

form  of  return  of  personal 81 

admission  of,  where  made,  and  what  is 82 

how  made  on   partnership 82 

form  of  return  of,  on   firm 82 

of  notice   when  county  defendant,  how  made 83 

corporation  defendant,  how  made 83 

form  of  return  of,  by  copy 83 

return  of,  on  original  notice 81 

form  of  return  of,  where  county  defendant  .    .     • 83 

of  notice,  when  may  be  made  on  agents 84 

return  of,  on  railroad  corporation 84 

of  original  notice  on  minors,  how  made 84 

insane,  how  made 85 

infant  must  be  made 85 

form  of  return    of,   on   minor 86 

insane 86 

where  superintendent  of  insane  asylum  acknowledges 86 

return  on  notice,  when  cannot  be  made 86 

of  notice,  when  may  be  made  on  Sunday 87 

when  made  of  attachment,  binds  property 90. 

of  attachment  not  valid  unless  property  in  view 93,  94 

when  valid,  property  need  not  be  removed 93 

officer  may  break  open  building,  when 94 

dwelling  house,  when 95 

of  garnishment  on  firm,  how  made 99 

several  executions,  how  made 115 

of  execution  cannot  be  made  on  property  wrongfully  obtained 116 

of  notice  of  mortgage  sale 154 

of  writ  of  injunction,  how  made 158 

form  of  return  of,  on  writ  of  injunction 158 

ofsubpwna,  how  made 159 


INDEX.  441 

SERVICE— Continued— 

of  u^rit  of  certiorari,  how  made jg-j 

of  habeas  corpus,  how  made 2g2 

of  mandamus,  how  made Ig5 

of  motions,  how  made 2g7 

of  execution,  from  supreme  court,  same  as  from  district  court IgS 

c/"  warra^/ for  arrest  on  complaint 171 

for  recovery  of  property 17g 

return  of,  on  search  warrant 178 

of  bench  warrants,  how  made 180 

of  coroner's  warrant,  by  whom  made 184,  313 

SHERI  pr- 
election of 4_  75 

qualifications,  of 5^  75 

bond  of 5 

sureties  on 5 

vacancy,  coroner  may  act  as 3II 

suspension  of,  by  judge,  when 7 

deputies  may  be  appointed 7 

unlimited g 

advertisements ,  has  control,  of  his  ofifice 12 

fees  for  putting  up I95 

/(JWtfri' (y,  under  orders  for  delivery  of  property 14 

bribe,  penalty  for  receiving I4 

jurors,  to  serve  precept  for 58 

laws,  he  must  execute 7g 

disobedience  of  process  is  contempt  of  court 7g 

duties  enumerated  generally 7g 

attorney,  cannot  be 7g 

purchase  by  him  at  sale  is  void 7g 

//■t^iTtfj-j-,  he  may  execute  after  term 7g 

successor,  all  books  to  be  delivered  to 7g 

original  notice,  duty  of,  when  received 78 

notice  of,  how  served 78,  79 

return  of,  when  personally  served 78 

time  received  to  be  indorsed 79 

defective  return,  penalty  for 79 

when  defendant  not  found 80 

must  use  diligence  to  serve gQ 

when  to  serve  by gQ 

where  and  with  whom  to  leave gO 

meaning  of  "  family  " 80 

return,  what  it  should  show 81 

form  of,  personal  service 81 

when  several  defendants 81 

service  admitted 82 

form  of 82 

on  firm 82 

on  county 82 

by  copy 82 

on  corporation 82 

agents 83 

railroad  company 84 

return  of 84 

minors 85 

return  of .    .    - 86 

prisoner 85 

insane 85 

return  of 8tt 

must  be  made  on  infant 85 

when  cannot  be  made 85 

return  of 86 

when  made  on  Sunday 87 

return,  effect  of 87 


442  INDEX. 

SHERIFF— Continued— 

return  of  not  found 87 

in  case  of  admission 87 

is  evidence  of  what 87 

what  it  must   show 1(1 

attachment,  sliall  take  amount   directed 8'.) 

may  fol    w  property  to  another  county 8i) 

at...ch  what,  and  how 89 

defendant  may  be  examined,  when 8'.) 

wlien  property  bound , 90 

receiver  appointed,    when 90 

money  taken  to  be  paid  to  clerk 90 

other   i)roperty  to  be  kept 90 

partnership  property,  how  attached 90 

how  made  to  enforce  mortgage ■ 90 

when  debt  is  due  the  state 90 

damages   how  paid 91 

when   may  be  discharged 9.> 

judgment,  how  satisfied 91 

court  may  control  property 91 

expenseof  keeping  property,  allowed 91 

surplus  proceeds  returned  to  defendant 91 

when  for  defendant,  property  discharged 91 

intervention,  how  made  and  tried 91 

writ  of  attachment,  what   to  contain 92 

presumed  regular,  when 92 

must  be  served  diligently 92 

must  levy  fifty  per  cent  more 92 

not  to  levy  on  exempt  property 9.'> 

bond  no  protection 93 

levy  of,  what  is  valid 93 

W'hen  valid  property  need  not  be  removed 9.'i 

when  made  property  must  be  in  view 94 

not  necessary  to  touch  the  property 94 

what  is  not  valid 94 

may  break  open  building  to  make,  when 94 

cannot  break  dwelling  house 95 

may  enter  by  permission 95 

how  made  when  several  attachments 95 

when  otificer  has  interest 95 

how  made  on  real  estate ....  9(5 

cannot  be  made  on  mortgaged  personal  property 99 

money,   how  attached  • 96 

^x/^«j£'i',  of  keeping  property,  how  paid 9f! 

garnishment,  how  effected 96 

notice  of,  form  of 97 

answers  to,   taken  by  sheriff 98 

direction  to  sheriff 98 

questions 98 

where  plaintiff  wants  garnishee  to  appear 99 

does  not  apply  to  municipal  corporations 99 

cannot  be  done  without  writ 99 

answers  to,  how  made 99 

of  firm,  how  served 99 

mortgagee  of  personal  property  may  be  garnisheed 100 

proceedings  by,  on  execution 113 

attached  property,  released,  when 100 

by  bond  to  plaintiff 100 

effect  of  judgment  on  bond 100 

bond,  person  in  possession  may  give 100 

when  given,  property  to  be  appraised 100 

action  on,  defense  to 100 

for  delivery;  its  effect 100 

takes  place  of  attachment  lien 101 

to  release  property  in  hands  of  garnishee 101 


INDEX.  443 

SHERIFF— Continued— 

bond,  if  made  to  sheriff,  plaintiff  may  sue  officer 101 

for  delivery  of  property,  form  of 101 

appraisement,  how  effected 101 

appraisers,  summons  to 101 

dath  to 101 

report  of 101 

perishable  property,  sale  of,  under  attachment 104 

jury  to  inspect 104 

summons  and  oath  to 104 

report  of,  for  sale 105 

against  sale 105 

failing  to  appear,  guilty  of  contempt 106 

notice  must  be  given  defendant  ....          105 

.       defendant  entitled  to  hearing lOG 

duty  on  finding  of  jury 106 

if  defendant  consent,  sale  without  jury 106 

j^tf«y?c  a/^acA/wf^/i-,  writ  must  describe  property 106 

have  order  of  court  indorsed 107 

be  fully  obeyed 107 

when  levy  invalid 107 

return  of  attachments,  what  to  contain 107 

must  show  when  levy  made 107 

bond  given 107 

form  of 107 

is  evidence  of  what 109 

when  shall  be  made lOt) 

may  be  amended,  when 109 

execution,  when  may  issue 110 

judgments  inforced  by 110 

may  issue  into  any  county,  when 110 

on  Sunday,  when 110 

demand  of  party 110 

when  issued  to  another  county,  what  done Ill 

return,  how  made Ill 

general  form  of " Ill 

when  against  representative j Ill 

for  deliveryof  property Ill 

performance  of  other  act Ill 

officer  must  receipt  for IH 

what  must  be  indorsed  thereon Ill 

when  against  principal  and  surety 112 

meaning  of  "surety" 112 

property  of  surety  liable,  when 112 

judgment  must  fix  order  of  liability 112 

officer  must  serve  at  once 114 

not  lien  until  levy  made 115 

only  one  at  a  time  in  existence 115 

is  dead  if  levy  not  made  in  time  fixed 115 

to  be  served  in  order  received 115 

plaintiff  may  order  return,  when 115 

officer  cannot  discharge 116 

return  to,  form  of 140 

money  received  on,  what  done 116 

levy,  mode  of H  2 

what  property  to  take 112 

judgments,  bank  bills,  etc.,  subject  to 112 

persons  indebted  to  defendant  may  pay 112 

public  property  not  liable 112 

of  tax,  to  ])ay  corporate  debt ll-'{ 

stocks  or  interests  subject  to 11 -i 

when  made  officer  liable  to  plaintiff 116 

cannot  be  made  on  property  obtained  by  fraud 116 

tortiously  severed  from  freehold 116 

indorsement  of,  form  of 1 10 


444  INDEX. 

SHERIFF— Continued— 

far/f/f/-s/ti/>  proper/y,  officer  may  lake,  inventory  and  appraise 113 

lien  enforced  how 113 

indenutifying  bond,  may   be   required,  when 113 

terms  and  condition  of US 

if  not  given,  levy  discharged .•    •    •    US 

officer  protected  if  bond  good  when  given 113 

proceeds  of  property,  how  disposed  of 113 

form  of 118 

approval  of 118 

must  be  returned  to  clerk 119 

stay  of  execution ,  when  execution  re-called 119 

property  released  when  stay  entered 119 

after  stay  expires,  what  done 119 

^jf^w/Zw/J,  from  execution  enumerated 119 

"  family  "  defined 120 

personal  earnings  are 120,  121 

what  to  unmarried  person 120 

persons  started  to  leave  the  state 120 

does  not  apply  to  purchase  money 120 

when  debtor  absconds,  goes  to  family 120 

who  is  not  head  of  family 121 

habitual  use  of  team,  what  is 121 

debtor  may  dispose  of  exempt  property 121 

no  waiver  of  rights  of 121 

when  exempt  property  turned  out 121 

applies  to  personal  property  in  hands  of  widow 122 

homestead,  exemption  applies  to 122 

must  be  occupied  by  head  of  family 122 

liable  for  taxes ' 122 

debts  prior  to  purchase  of 122,  125 

when  so  stipulated 122 

extent  of 123,  125 

who  may  select  and  have  platted 123 

may  be  changed 123,  126 

new  homestead  exempt  .• 123,  126 

disagreement  as  to,  how   settled 123 

survivor  to  occupy 124 

disposed  of,  what  deemed  descent 124 

sale  of,  when  no  survivor       124 

devise  of 124 

what  is 124 

belongs  to  the  family 124 

leaseholder  property,  when  is 125 

interest  of  tenant  in  common,  when  is 125 

when   character  of  attaches 125 

additions  made  to,  under  verbal  contract  of  purchase 126 

temporary  absence  does  not  affect  right  of 126 

waiver  of  rights  of 126 

widower  and  mother  deemed  family 127 

may  be  sold  for  taxes  on  mortgage  foreclosure 127 

sale,  under  execution 127 

notice,  how  given 127 

penalty  for,  without  notice 127 

how  made 128 

notice  of,  form  of 129 

time  of,  and  publication 130 

want  of,  does  not  invalidate  sale 131 

to  defendant  of  levy 130 

form  of 101 

when  sale  not  redeemable 131 

when  made,  presumed  regular 138 

inadequacy  of  price,  not  cause  to  set  aside 138 

attorney   cannot  adjourn 138 

en  masse,  when  set  aside 139 


INDEX.  445 

SHERIFF— Continued— 

sale,  under  execution,  failure  to  pay  bid,  re-sale 139 

discretion  of  officer  as  to 139 

a/i/r(7/j(r»/if«/,  right  of,  not  impaired  by  repeal  of  statute 131 

Low    done 132 

oath  to  appraisers 132 

form  of,  and   return 132 

of  real  estate 133 

interest  of  defendant  appraised 133 

when  interest  is  leasehold 137 

redemption,  right  of  on  execution  sales 134 

officer  to  give  deed  or  certificate 134 

defendant   may  redeem   when 134 

creditors  may  redeem  when 134 

entitled  to  assignment,  when 134 

when  sold  in  parcels  any  portion  may  be  redeemed 134 

portions  of  tenants  in  common  may  be  redeemed 134 

rights  of,  transferrable 134 

when  not  made,   deed  to  be  given 134 

evidence  of  purchase  need  not  be  recorded,  until 135 

deeds  imply,  regularity 135 

computing  time  of,  rule  for 140 

deed,  form  of,  on  sale 136 

appraisement  of  leasehold  interest 137 

judgment,  death  of  plaintiff,  how  execution   issued 138 

duly   of   officer 138 

receiver,  sheriff  may  be  appointed 138 

when  appointed  sureties  on  bond  liable 138 

levy,  must   be  indorsed,  when 140 

indorsement,  form  of 140 

return,  to  execution,  form  of 140 

replevin,  order  for  clerk  to  issue 142 

to  follow   property 142 

execution  of,  duty  of  officer 142 

for  examination  of  defendant  to  discover   property 142 

how  returned • 143 

property  to  be  delivered  to  plaintiff 143 

defendant  may  prevent  delivery,  when 143 

plaintiff  may  inspect  property 143 

bond  given  when  property  retained 143 

form  of 143 

approval  of 144 

amount  of 144 

property  appraised 144 

return  to  writ  of , 144 

wlien   bond  given    ,....• 144 

officer   must   obey  the  writ M5 

trial  in  action  of,  verdict  of  jury 146 

judgment   on   verdict   .    .    .    .    • 146 

execution  of 146 

on  bond 146 

plaintiff's  option,  what  he  will  do 146 

when  property  has  been  concealed 146 

condemnation  of  property,  manner  of 147 

sheriff  to  summon  jury 147 

jury  to  assess  damages 147 

when   owner  is  minor,  or  insane 147 

notice  of,  to  non-resident  owner 147 

how  published 148 

proceedings  when  garden,  orchard  or  dwelling  house  is  affected  ....  148 

when  commissioners  fail  to  appear,  talesmen  summoned 148 

costs  of  Rssessment,  paid  by  corporation 148 

commissioner's  report  may  be  recorded 148 

appeals,  how  taken 149 

not  to  delay  work 149 


446  INDEX. 

SHERIFF— Continued— 

appeals,  when  barred 149 

trial  of,  jucii^mcnt 149 

railways,  wlien  deemed  abandoned 149 

how  right  of  way  of,  condemned 149 

state  may  condemn,  when 150 

damages  how  paid 150 

appraisers,  application  to  appoint 160 

notice  of  meeting  of 151 

report  of 151 

quarry  or  mine  owners  may  have 152 

how  to  proceed 152 

may  establish  railway 153 

ckatlel  mortgage,  ioreoXosMTe  oi 154 

notice 154 

how  served 154,  155 

notice  of  sale,  how  given 154 

form  of 155 

purchaser  takes  title 1 54 

entitled  to  bill  of  sale 154 

form  of  bill  of  sale 156 

evidence  of  sale,  how  perpetuated 154 

sale  valid  against  equities  of  mortgagor  and  mortgagee 155 

right  to  foreclose  may  be  contested 155 

deed  of  trust,  deemed  mortgage 155 

proceeds  of  sale,  how  applied 157 

form  of 393 

satisfaction  of 394 

injunction,  writ  of,  how  served 158 

penalty  for  disobeying,  by  officer 158 

return  of  service  of  writ 158 

subpoenas,  how  served 159 

when  witness  conceals  himself 159 

return  of  service,  form  of 159 

when  by  copy 160 

certiorari,  writ  of,  how  served 160 

habeas  corpus,  writ  of,  who  may  serve 162 

how  served 162 

when  defendant   concealed 162 

must  be  obeyed,  though  irregular 162 

penalty  for  eluding 163 

refusing  to  give  copy  of  writ,  by  officer 163 

when  to  issue 163 

parties  may  be  arrested  by  precept,  when 163 

precept,  how  served 1d3 

examination  of  defendant 163 

return  to 163 

when  service  on  another  party 163 

»«aw</<7w?«,  service  and  return  of  writ  of 163 

insane  convict,  may  be  committed  to  insane  hospital 166 

commitment  to  hospital  releases  bail 166 

when  becomes  sane,  duty  of  sheriff 166 

expences  of  commitment  how  paid 166 

motions,  notice  of,  how  served 167 

return  of  service,  how  made 167 

when  court  may  direct  service 107 

appeal,  notice  of,  how  served      107 

supreme  court,  executions  from,  how  served 169 

tjrrw^j,  may  summon  power  of  county  to  make 169 

on  complaint  filed,  how  made 169 

warrant  for,  form  of 109 

to  whom  directed 170 

if  for  misdemeanor,  bail  must  be  fixed 170 

felony,  defendant  must  be  taken  before  magistrate 170 

misdemeanor,  and  made  in  another  county , 170 


INDEX.  447 

SHERIFF— Continued— 

warrant  for,  on  preliminay  examination 170 

what  it  must  specify 171 

to  whom  directed 171 

if  for  misdemeanor,  bail  taken 171 

felony,  defendant  takeh  before  magistrate 171 

how  served 171 

bail  given,  defendant  discharged 170 

not  given,  defendant  given  into  custody  of  officer 170 

proceedings  after  arrest 171 

what  is 171,  174 

l)y  whom  made 171 

with  warrrant  by  peace  officer »   .    .    .    171,  173 

without  warront  by  peace  officer 171,  173,  175 

by  private  person,  when 171_  175 

magistrate  may  orally  order,  when 171 

when  may  be  made 171,  174 

'      how  to  be  made 172 

when  officer  resisted 172 

officer  may  break  and  enter  premises 172,  175 

summon  aid,  when 172 

cannot  use  unnecessary  force 172 

may  take  weapons  from  person 172 

when  prisoner  escapes,  power  of  officer 172 

when  made  by  bystander,  prisoner  delivered  to  officer 172 

private  person,  prisoner  must  be  taken  before  magistrate  .  172 

magistrate  may  order  information  filed 173 

hearing  before  another  magistrate 173 

when  offense  triable  in  another  county 174 

officer  must  make  return  on  all  orders  from  magistrates 174 

search  -warrant,  by  whom  served 176 

officer  may  break  open  doors 170 

must  be  served  in  day  time 176 

returned  in  ten  days ." 176 

officer  must  receipt  for  property 176,  177 

warrant  and  inventory  of  property  must  be  returned 176 

officer  must  not  exceed  authority 176 

follow  directions  of  warrant 176 

when  house  of  a  company  is  to  be  searched 177 

warrant  must  particularly  describe  property 178 

officer  justified,  if  warrant  regular 178 

return  of  service,  form  of 178 

oath  of  officer  to  return,  form  of 178 

j/«j/<;«//-ci/fr/)' in  custody  of  officer,  how  disposed  of 177 

if  not  claimed,  how  disposed  of 177 

bench  warrants,  where  served,  after  indictment 180 

service  same  as  warrant  on  preliminary  information 180 

when  indictment  is  against  a  corporation 180 

defendant  must  be  arraigned 180 

when  defendant  must  be  present 180 

proceedings  if  detendant  is  in  custody 180 

on  bail 180 

how  served  for  judgment  of  court 181 

contempt 181 

disobedience  of  order  of  court 181 

judgment,  in  criminal  cases,  liow  executed 181 

copy  of,  must  lie  given  ihe  officer 181 

defendant  detained  by  officer  until  judgment  complied  with 181 

by  whom  executed 181 

officers  authority  in  committing 181 

return  on  execution 182 

judgment  for  fine,  execution  same  as  in  civil  case ]82 

aljatement  of  nuisance,  how  enforced 182 

return  to  judgment   execution 182 

execution  abating  nuisance 183 


448  INDEX. 

SHERIFF— CONTINITKD— 

requisitions,  when  made  by  auditor,  how  served 184 

/ar^rj,  sheriff  to  notify  election  judges  of  ajipointnicnt  of 185 

summon  to  appear  before  court 185 

coroner,  warrant  issued  by,  how  served 184 

proclamation,  of  general  election,  to  be  published  by 184 

jail,  has   charge  of ■ 185 

for  what   used 185 

duty  of  keeper  of 185 

must  keep  calendar  of  prisoners 185 

copy  of  calendar  returned  to  district  court 185 

what  to  be  furnished   prisoners 185 

disposition  of  prisoners  if  jail  takes  fire 185 

calendar  of  prisoners,   form  of 18B 

refractory  prisoners,  how  restrained 186 

expenses  of  keeping  prisoners,  how  paid 186 

accurate  account  of  expenses  to  be  kept 186 

inspectors  of,  who  are 187 

when  to  inspect 187 

rights  and  duties    of 187 

may  swear  officers 187 

prisoners,  may  be  required  to  labor ;    .  188 

to  be  credited  for  labor 188 

penalty  for  cruel   treatment    of 188 

must  be  iirotected   from   insult 188 

penalty  for  persons  annoying  prisoner 188 

courts,  must  attend  courts 190 

may  appoint  bniliffs 190 

require  bond  of  bailiffs 190 

duties  of  in  court 190 

must  take  charge  of  witnesses 191 

attend  on  the  grand  jury 191 

liability,  is,  on  bond,  for  mal-performance  and  non-performance  of  duties       ,  192 

bond,  though  irregular,  is  good  as  a  voluntary   obligation 192  , 

for  sale  of  land  without  levy 192 

actions  for  damages,  barred  in  three  years 193 

judgment  against  officer,  on  motion  for  money  collected 19S 

sureties  liable  for  all  breach  of  duty  by  principal 192 

not  liable  after  term  expires 192 

when  not  liable  for  money 192 

liable  for  money 193 

liable,  when  officer  fails  to  take  necessary  bond 193 

levies  on  exempt  property 193 

on  substituted  bond,  when  not  liable 193 

fees  and  compensation,  what  allowed  in  civil  cases 194 

J                                             criminal  cases 195 

for  seizure  of  intoxicating  liquor 195 

carriage  hire 195 

attending   court 195 

conveying  insane  to  hospital 196 

putting  up  advertisements 196 

acting  as  constable 196 

SUBMISSION— 

of  certain  matters  to  people,   by  supervisors 201 

SUBPCENAS— 

when  election  contested,   clerk  to  issue 68 

service  of,  how  made 159 

how  served 159 

when  witness  conceals  himself 159 

form  of  return  on 159 

STOLEN  PROPERTY— 

to  be  held  by  officer  subject  to  order  of  magistrate 177 

may  be  delivered  to  owner 177 


INDEX.  449 

STOLEN  PROPERTY— Continued— 

not  claimed  to  be  delivered  to  county  auditor 177 

officer  to  give  receipt  for 177 

SUMMONS- 

form  of,  to  appraisers  of  attached   property 103 

SUNDAY— 

when  execution  served  on 110 

warrant  for  arrest  may  be  served  on 174 

original  notice  served  on 87 

SUPERVISORS^ 

when  elected 4 

of  highway,  when  and  how  elected 4 

not  required  to  give  bond 4 

proceedings  when  official  bond  not  approved  by 5 

to  recover  penalty  for  neglect  to  record  official  bond        5 

to  fill  vacancy  caused  by  suspension 7 

what  advertisements  they  control 13 

number  and  term  of  office 197 

when  elected 197 

meetings  of 197 

quorum 197 

absence  of  six  months  deemed  resignation  of 197 

number  of  how  increased  or   diminished 197 

districts,  for,  may  be  established  by 198 

how  constituted 198 

unrepresented  how  supplied 198 

may  be  formed  evey  two  years 19S 

organization  of,  chairman  selected 198 

special  meetings  of,  how  called 198 

/i?«(z//)' for  neglect  of  duty 19S 

/(7t£)(7r5  of  enumerated 193 

proceedings  of,  how  published 200,  215 

when  majority  of  board  must  concur 200 

to  select  newspaper  to  publish  notices 201,  215 

books  to  be  kept  by 201 

submission  of  certain  matters  to  vote  of  people 201 

mode  of 201 

when  fraud  in:  avoidance  of 217 

when  to  levy  tax,  what  to  state 202,  217 

votes  to  be  recorded 202 

proposition  may  be  rescinded,  how 202 

must  be  made,  when 203 

record  of  presumptive  of  regularity 202 

when  tax  exceeds  amount  required  , 202 

money  thus  raised,  kept  separate 202 

to  provide  place  for  holding  courts 203,  21G 

county  surveyor  with  books 203 

townships,  to  divide  county   into 203 

designate  place  of  holding  elections '.    .    .    .    .  203 

order  election  of  township  collectors 203 

approve  bond  of  township  collectors 203 

levy  tax  to  pay  expense  of  board  of  health 203 

assess  expense  of  platting   lands 203 

may  divide  townships  into  election  precincts 203 

provide  ballot  boxes 203 

may  fix  compensation  of  deputy  county  officers 203 

taxes,  to  levy  at  September  meeting 203 

may  exempt  propcr;y  from  taxation 203 

reburse  on  |)ropcrty  destroyed  by  fire 204 

must  classify  properly  for  taxation 204 

settle  with  ireasurcr 214 

may  remit  uncollected,  when 21ft 

(4?]^Azi/fl)'.f,  may  establish,  vacate,  or  alter 20t,  217 

29 


450  INDEX. 

SUPERVISORS— Continued— 

Ai^Aways,  m:xy  order  rcsuTvey  of 204 

proceedings  not  invalid  for  irregularity 217 

power  to  grade  roads 217 

duty  to  repair  roads  not  imposed 218 

powers  of,  in  cities  and  towns 218 

cannot  establish,  beyond  terminus 218 

appraisers  of  cannot  allow  for  benefits 218 

establishment  not  anulled  by  certiorari 218 

bridges,  may  grant  licenses  for  toll 204,  216 

build,  when  and  how 200,  215,  217 

fix  toll  thereon 204 

location  of 204 

when  county  liable  for  unsafe 217 

ferries,  may  license,  and  fix  rates  thereof 204 

railroads,  may  cause  statement  of  property  of 204 

drains,  may  locate,  and  have  constructed 204 

pauper,  may  order  removal  of 204 

relief  for,  paid  by  county 204 

poor  Aouse,  may  establish   and  regulate 204 

levy  tax  to  support  poor 204 

flwwjwzfrw/,  must  equalize,  of  the  several  townships 204,  215 

no  power  to  reduce  assessments 220 

records  to  be  kept  by  auditor 205 

minute  book,  form  of 205 

highway  book,  what  to  contain 207 

form  of 208 

evidence  of  regularity 218 

warrant  book,  what  to  contain 212 

of  official  bonds  what  to  contain 212 

highway  plat  book,  what  to  contain 213 

bonds,  to  approve   county  and  township  official  bonds 213 

oath,  must  take  oath  of  office 203 

attorney,  may  employ  in  certain  cases 214 

buildings,  may  erect  public  buildings 214 

contract,  power  of,  to  make 214 

liability,  illegal  erection  of  bridges 215 

county  not  liable  for  neglect  of  officers  in  relation  to  roads,  when  .    .    .    .  217 

when  liable  for  unsafe  bridge; 217 

a//<'a/ lies  from  order  of  board,  when 217 

toa/ 7;z/«^j',  may  appoint  inspector  of 219 

teachers'  institutes,  may  vote  aid  to  support  ...•'* 219 

compu7isation,  what  it  is 220 

special  meetings,  how  convened 223 

SUPERINTENDENT  OF  SCHOOLS— 

election  of 3 

bond  of 4 

sureties  on 5 

SURETIES— 

number  of,  on  official  bond 5 

on  bond,  may  be  released,  when 8 

not  otherwise  provided  shall  be  by  bond 13 

to  whom  given 13 

on  bond,  must  be  residents  of  the  state 13 

on  bend,  worth  double  the  amount  secured 13 

on  bond,  must  qualify  on  oath '    ' 13 

liability  of  officer  for  taking  insufficient 13 

what  required  for  loan  of  public  funds 14 

extent  of  liability  of 21 

form  of  justification  of,  on  bond 50 

what  the  term  mears 112 

liable  for  acts  of  slieriff  as  receiver 138 

liability  of,  on  sheriff's  bond 192 

on  substituted  bond,  not  liable,  when 193 


INDEX.  451 

SURVEYOR— 

bond  of 5 

sureties  on 5 

may  appoint  a  deputy 7 

election  of 282 

duties  of 282 

rules  and  instructions  for 285 

fees  of 310 

SUSPENSION— 

when  officer  of  court  suspended,  court  to  fill  vacancy 7 

of  clerk  and  sheriff  by  judge 7 

petition  for,  to  be  by  district  attorney 7 

order  for,  by  judge  to  be  certified  to  auditor 7 

TAXES— 

how  raised  to  pay  borrowed  money 201 

supervisors  must  levy  in  September  . 203 

supervisors  may  exempt  certain  property  from 203 

taxes  may  be  remitted  if  imcollected,  when 219 

supervisors  must  classify  propery  for 204 

for  county  school,  to  be  apportioned  by  auditor 232 

list  of,  when  auditor  to  deliver  to  treasurer 228 

list  of,  to  be  corrected  by  auditor 226,  227 

list  of,  furnished  collectors  by  auditor 223 

of  county  to  be  apportioned  by  auditor 232 

duty  of  treasurer  relating  to ' 238 

duties  of  township  trustees  as  to 345 

assessor  as  to 371 

collector  as   to 374 

TAX  LIST— 

how  published ' 244 

TEACHERS'  INSTITUTES— 

aid  for,  paid  by  county 219 

TERM— 

of  civil  officer  until  successor  qualified 10 

TESTIMONY— 

of  witnesses  before  coroner 312 

* 

TOWNSHIP  ASSESSOR— 

election  of,  when 4,  371 

qualification  of 6,  371 

must  give  bond 371 

powers  and  duties  of 371 

to  makelist  of  votes 371 

to   assess   township 371 

when  to  assess 371 

must  assess   values 371 

what  to  be  assessed 372 

when  list  to  be  corrected  .    .         372 

to  deliver  books  to  township  clerk 372 

when  owner  unknown,  how  to  assess » 372 

penalty  for  neglect  of  duty 372 

must  meet  board  of  equalization 372 

militia  list,  what  it  is 373 

must  make  list  of  children  of  deceased  soldiers 373 

county  auditor  to  furnish  blanks 373 

compensation  of 373 

TOWNSHIP  CLERK— 

when  elected 358 

how  qualified 358 


4-52  INDEX. 

TOWNSHIP  CLERK— Continued— 

may  resign 356 

duties  of 356 

what  records  to  keep 356 

may  administer  certain   oaths 356 

to  notify  county  auditor  of  officers  elected 356 

to  act  as  clerk  of  election 357 

to  preserve  poll  books 357 

to  keep  the  ballots 357 

duty  when  there  is  a  tie 357 

to  post  notices  of  ofticers  elected 357 

registratio7i,  to  make  list  of  voters  in  certain  cases 358 

is  one  of  board  of  registry 358 

register  of  election,  what  to  contain 358 

board  of.  when  to  meet 358 

in  city  or  town  to  prepare  register  of  voters 3551 

special  elections, -duties  of 359 

board  of  in  new  township 359 

where  registry  law  docs  not  apply 359 

highways,  must  furnish  supervisor  with  plat  of 360 

must  make  tax  list  for  highway  districts 360 

what  list  must  contain 300 

when  taxes  have  not  been  paid 360 

county  treasurer  to  pay  clerk 360 

to  approve  bonds  of  road  supervisors 361 

to  notify  road  supervisor  of  his  election 361 

to  direct  highway  to  be  opened,  when 301 

drainage,  to  file  petition  for 361 

to  notify  trustees 361 

may  approve  bonds  in  drainage  petitions 361 

trespassing  animals,  must  file  the  assessment  of  damages 362 

ro«rf/««£!',  must  keep  account  with 362 

form  of  account 302 

record,  form  of,  for  township 363 

form  of  certificate 365 

fees,  what  allowed 366 

TOWNSHIP  COLLECTOR— 

election  of.  when 374,  376 

qualification  of 374 

taxes,  powers  of 374 

to  give  notice  of  tax  list*. 375 

must  demand  taxes 3(5 

must  make  monthly  statement 375 

unpaid  taxes,  how  collected 375 

failure  to  collect 376 

liability  of  for  taxes 376 

notice  of  to  tax  payers  .    .    .• 376 

sale  of  property  for  taxes 376 

form  of  monthly  statement 377 

final  statement 377 

affidavit  of  unpaid  taxes 377 

cannot  distrain  exempt   property 377 

fees  of 3(7 

TOWNSHIP  OFFICERS— 

election  of 4,  335 

removal  of ^ 

when  town  contains  city 335 

elected  annually 335 

additional  justices  and  constables 335 

when  refuse  to  serve 335 

trustees,  powers  and  duties  of  generally 336 

as  overseer  of  poor 336 

fence  viewers 339 

as  board  of  equalization 339 


INDEX.  453 

TOWNSHIP  OFFICERS— Continued— 

trustees,  powers  and  duties  of  board  of  health 346 

as  to  highways 348 

as  to  drainage 349 

as  to  trespassing  animals 353 

as  to  school  fund 355 

clerk,  election  of 4,  356 

qualification 5,  356 

duties  of  generally 356 

as  to  elections 357 

as  to  highways 360 

as  to  drainage 361 

trespassing  animals 362 

as  road  fund 362 

as  record  book 363 

constable,   election   of 367 

duties  of 367 

powers  of 368 

offenses  of 368 

fees  of 368 

assessor,  election  of 3T1 

powers  of 371 

duties  of 371 

compensation  of 373 

collector,  election  of 374 

duties  of 374 

powers  of 375 

report  of,  how  made 376 

TOWNSHIP  TRUSTEES— 

election  of 335 

to  fix  place  of  election 336 

must  keep  record  of  doings 336 

powers  of  generally 336 

poor,  powers  of  as  overseers  of  the  poor 336 

fences,  duties  as  fence  viewers 339 

taxes,  duties  as  board  of  equalization 345 

health,  duties  as  board  of  health 346 

roads,  duties  as  to  highways 348 

ditches,  duties  as  to  drainage 349 

stock,  duties  as  to  trespassing  animals ^ 352 

schools,  duties  as  to  school  fund 355 

fees  and  compensation  of 356 

TRANSFER  BOOK— 

conveyances  to  be  entered  in,  by  auditor 233 

to  be  kept  by  auditor 233 

form  of 233 

TREASURER— 

election,  and  qualification  of 236 

term  is  two  years:  consequence  of  holding  over 273 

may  be  recorder  when 276 

duties,  defined 236 

to  receive  all  funds  of  county 236 

warrants,  wlicn  no  funds,  to  indorse 236 

may  he  flividod,  when  and  how 237 

book  of,  how  kept 237 

different  funds  kept  separate 237 

to  l)i;  canceled,  how 237 

weekly  return  of  to  be  made,  to  auditor 237 

accounts  of  cnch  term  kept  separate 237 

how  to  be  receipted 253 

penalty  for  discounting 253 

loaning  or  using  public  money 253 


454  INDEX 

TREASURER— Continued— 

bonds,  of  county,  when  issued,  how  disposed  of 237 

tax,  how  levied  to  pay .    .    238 

how   paid  or  redeemed 238 

taxes,  to  deUver  township  collector  duplicate  list 233 

township  collectors  to  report  monthly  to 239 

to  pay  taxes  of  city  or  town,  to  treasurer  thereof 239 

to  pay  over  taxes  collected   for  township  board  of  health 239 

to  collect  unpaid .    239 

unpaid  to  be  reported  to 239 

to  enter  delinquent  on  tax  book 240 

to  collect 240 

to  notify  owner  of  land  sold  for 240 

to  certify  amount  of  taxes  due 240 

certificate  of,  effect  of 240 

error  in,  liable  on  bond  for 240 

may  assess  property  omitted 241 

when  are  lien  on  properly 241 

warrants  to  be  recc  ived  for 241 

currency  to  be  received  for 241 

when  become  delinquent 243 

penalty  after  delinquent 243 

sale  for  taxes,  when  and  how  made 241 

notice  of,  when  and  how  made 241 

may  appoint  deputies  to  aid 242 

require  aid  when  resisted 242 

certify  taxes  to  treasurer  of  another  county 242 

force  and  effect  of  such  certificate 242 

penalty  in  addition  to  taxes  so  collected 242 

return  made  to  officer  sending  abstract 242 

to  give  tax  payer  a  receipt 243 

to  apportion  consolidated  tax 243 

to  keep  account  widi  each  fund 243 

to  refund  taxes  when  directed  by  supervisors 244 

sale,  of  real  property  for  unpaid  taxes 244 

notice  to  be  given 244 

how  published 244 

cost  of  publication,  how  collected 244 

each  tract  or  parcel  to  be  offered  separately 245 

who  deemed  purchaser 245 

homestead  liable 245 

continued  from   day  to  day 245 

if  purchaser  fail  to  pay,  re-sale 245 

owner  may  pay  any  time  before  sale 245 

not  affected  by  irregularity  in  advertisement  of 245 

certificate  of  publisher,  where   filed 245 

form  of 245 

record  of  to  be  kept  by 245 

may  be  adjourned  by 245 

penalty  for  failure  of  duty 246,  257 

purchasing  at  sale 246 

when  sale  cannot  be  made  in  time  prescribed 247 

when  wrongfully  made ....    251 

of  land  not  taxable 251 

invalid  when  assessed  to  wrong  person 252 

certificate  of  purchase  to  be  given  purchaser 247 

assignable 247 

to  give  receipt  for  subsequent  taxes 247 

redemption,  how  effected 247 

certificate  of,  to  be  given 248 

of  property  of  minors  and  lunatics 248 

how  effected  after  deed  made 248 

deed  to  be  given  purchaser,  when 248 

form  of 249 

effect  of 252 


INDEX.  455 

TREASURER— Continued— 

jcA^c?/ /a«(/,  when  sold,  what  interest  purchaser  acquires ■  251 

/iw/7ai'/(?«  (?/(7c^/t?«  for  recovery  of  real  property  sold  for  taxes 261 

when  statutes  apply 272 

acts  of  treasurer  deemed  valid 252 

tfZ'/f/^rwff,  certified  copies  of  books  of,  are,  to  prove  sale 252 

peddlers  are  required  to  pay  tax • 252 

wholesale  peddlers  exempt 252 

license,  how  obtained 252 

liability  oiconniy  for  state  tax 252 

county  not  liable  for  illegal  acts  of 273 

of  treasurer  for  defalcation 252 

of  sureties  on  bond  of 252,  273,  274 

fixed  by  official  bond •    • 272 

for  taxes  partially  received 273 

not  liable  for  acts  of  book-keeper 273 

illegality  in  tax  list 272 

payments — when  to  settle  with  supervisors 253,  254 

pay  state  treasurer 253 

make  through  banks 253 

accounts  to  be  made  with  such  person  as  supervisors  direct 254 

illegality  of  tax,  no  defense  for  not  accounting 272 

penalty  for  failure  of  duty 254,  247 

discounting  warrants 253 

loaning  or  using  public  money 254 

railroads  to  collect  taxes  on  property  of 254 

blind — to  collect  account  of  clothing  furnished  pupils  in  college  for  blind.    .  254 

asylum  for  deaf  and  dumb  254 

two  county  seats,  duties  of,  in  such  cases 254 

remission  of  penalty  and  interest  on  delinquent  personal  taxes,  when  may  be 

made 254 

banks,  capital  of  savings,  to  be  taxed ,.  255 

school  tax,  must  pay  over  to  proper  district  officer 25(5 

j'f//(;<9//>/«o',  to  pay  loans  from,  made  by  auditor 25(i 

normal  institutes,  duties  of  relating  to 257 

unclaimed  property,  duly  of,  re\a.Ung  to 257 

accounts — necessary  books  to  keep 268 

forms  of.  of  various  funds 260 

/erm  is  for  two  years  :  consequence  of  holding  over 373 

Jees,  what  allowed 274 

must  be  reported  to  supervisors • 275 

bond  of. 5 

sureties  on 5 

may  appoint  a  deputy 7 

has  control  of  advertisements  of  his  office 12 

election  of 23B 

duties  of  generally 236 

when  county  bonds  issued 237 

relating  to  taxes 2"9 

school  tax 25tt 

fund 25('. 

Unclaimed  property  of  warehousemen 257 

keeping  accounts 25S 

liabilities  of • 272 

fees  of 274 

TRIAL— 

proceedings  in,  of  officer  for  removal 7 

trial  of  appeal  from  action  of  trustees  in  drainage  assessment 350 

TRUSTEES— 

of  township,  duties  of 33ri 

to  keep  record 33fi 

what  tlicy  arc 3.'irt 

poor — are  overseers  of  poor 330 


456  INDEX. 

TRUSTEES— Continued— 

poor,  who  liable  to  maintain 33(5 

may  apply  to  court  for  order 338 

court  may  order  execution 33(1 

abandoned  property  seized 337 

orders  affecting  real  estate 337 

inventory  of  property 337 

warning  to  depart 337 

how  given 337 

removal  when  settlement  in  another  county 337 

when  trustees  shall  afford  relief 337 

families  of  Iowa  soldiers 33S 

expenses  to  be  paid  out  of  county  treasury 338 

where  no  poor  houses .    .  338 

application  made  to 33S 

allowance  may  be  made  in  certain  cases 338 

may  appeal 338 

may  bind  county,  when 338 

as  fence  viewers,  duties  as  •    ' 339 

notice  to  rebuild  fence 339 

certificate  as  to  insufficient  fence 339 

when  fence  is  not  repaired 339 

penalty  for  disobeying  orders  of  fence  viewers 339 

certificate  of  value  of  fence 340 

disputes,  fence  viewers  to  settle 341 

failure  to  comply 341 

who  required  to  maintain 341 

when  desired  not  to  inclose 341 

when  owner  must  pay  for  partition  fence 341 

division  offence  to  be  recorded 341 

owner  and  fence  viewers  defend 342 

•fence  may  be  removed  from  another's  land 342 

lines,  fences  on 342 

lawful  fence  defined 342 

where  stock  is  restrained 343 

proceeding  as  to  partition  fence 343 

fence  viewers  a  local  forum 344 

parties  cannot  evade  the  statutes 344 

as  board  of  equalization,  who  is 34r) 

time  of  meeting 345 

may  correct  assessments 345 

county  board  no  power  to  correct  assessments 345 

as  board  of  health,  powers 346 

how  executed 346 

orders  of,  violated,  how  punished 347 

expenses  how  paid    .    .        347 

certificate  for 347 

vacancies,  what  offices  they  may  supply 348 

how  to  be  appointed 348 

highways,  powers  and  duty  as  to 348 

control  general  township  fund 348 

clerk  to  give  bond 349 

drainage,  duties  and  powers  as  to 349 

petition  for  drain,  how  filed 349 

hearing  of  petition,  when 349 

what  trustees  may  determine 350 

costs  how  paid 350 

trustees  to  assess  damages 350 

appeal,  how   taken 350 

trial  of  in  circuit  court 350 

drain  may  be  ordered  bridged 350 

form  of  notice  of  drain 351 

finding  and  decision 351 

trespassing  animals,  powers  as  to 352 

lien  on  trespassing  animals 352 


INDEX.  .457 

TRUSTEES— Continued— 

trespassing  a?iimals — lien  on,  payment  of 352 

who  may  restrain 352 

trustees  notified  to  assess  damages 352 

sale  of  stock  how  made 353 

assessment  filed  with  clerk 353 

certificate  of  damages  assessed 354 

notice  of  sale  of  stock 354 

school  fund,  trustees  arc  responsible  for  waste,  and  care  of 355 

fees,  what  are  allowed 355 

UNCLAIMED  PROPERTY— 

duty  of  treasurer  relating  to 257 

VACANCIES— 

shall  be  supplied  at  general  election,  when 3 

declared,  when  bond  of  officer  not  increased  on  requisition 8 

when  is  in  civil  offices 9 

how  filled 9 

in  office,  who  to  take  possession  of  office 10 

election  to  fill,  when 10 

when  fifteen  days  before  election 22 

officers  have  right  to  resign 22 

resignation  in  writing,  creates 22 

in  township  office  auditor  to  notify  township  clerk 225 

power  of  townshsp  trustees  to  fill 348 

of  township  clerk  filled  by  trustees 356 

in  township  offices,  clerk  to  notify  trustees 359 

of  constable,  how  fihed 367 

of  notary  public  what  done 321 

VENIRE— 

form  of,  for  jurors 70 

WARRANT— 

for  contempt,  clerk  to  issue 68 

form  of  bench 69 

for  juror's  fees,  to  be  drawn  by  auditor  on  certificate  of  clerk 234 

on  complaint,  issued  when  filed 169 

form  of 169 

to  whom  directed 169 

indorsement  of,  for  misdemeanor 169 

how  and   where  served 170 

when  felony  charged,  what  to  be  done 170 

arrest  how  made  with 171 

without 171 

when  made  with 173 

without 173 

return  on 173 

for  search,  by  whom   served 176 

officer  may  break  doors ,  176 

must  be  served  in  day  time,  unless 176 

must  be  returned  in  ten  days 176 

officer  to  receipt  for  ])roperty  taken  .            176 

inventory  of  property  returned  to  magistrate 176 

officer  must  not  exceed  autliority 176 

person  charged  with  felony  maybe  searched 176 

stolen  property  retained  for  identification 176 

officer  must  follow  directions  in 177 

what  necessary  to  search  house  of  company 177 

property  must  be  particularly  described 178 

form  of  return  of  service 178 

on  indictment,   after  final  judgment 180 

how   served .    ■    .                ....  180 

when  against    corporation 180 

defendant  in  custody 180 


458  INDEX. 

WARRANT— Continued— 

when  for  final  judgment 191 

may  be  issued  for  contempts,  etc 181 

of  coroner,  by  whom  served 184,  311 

bench  warrant,  form  of 69 

of  county,  treasurer  to  indorse,   when  no  funds 236 

may  be  divided  when  and  how 237 

book  of,  how  to  be  kept 201,  212,  237 

different   funds  kept    separate 237 

to  be  canceled,  how 237 

weekly  return  of  to  be  made  to  auditor 237 

of  each  term  of  office  to  be  kept  separate 237 

how  to  be  receipted 253 

penalty  for  discounting  by  officer 253 

inquest,  form  of,  of  coroner  for  jury 312,  315 

service   of 312 

for  arrest   of  defendant 313 

WILL— 

form  of  entry  of  probate  of 40 

WITNESS— 

oath  of  in   court 43 

testimony  of  by  deposition 60 

costs  of,  to  be  paid  by  clerk 68 

unclaimed  fees  of,  to  be  paid  to  treasurer 68 

testimony  of  before    coroner 317 

fees  of  before  coroner 318 

testimony  of  before  surveyor 283 

fees  of   before  surveyor 284 

testimony  of  before  township  trustees  in  drainage  hearing 350 

WRIT— 

of  certiorari,  when  issued 51 

form   of 51 

of  replevin,  when  and  how  issued 54,  144 

form  of 54 

form  of,  of  attachment  for  contempt 70 

of  attachment,  when  and  how  issued 52 

form    of,    of  attachment 52 

when  served,  binds  property 90 

what  it  should  contain 92 

presumed  regular,  when 92 

officer  caniiot  garnish  without 99 

in  specific  attachment,  what  it  must  contain 106 

what  return  to,  of  attachment  must  contain 107 

form  of  return  to,  of  attachment ,  107 

when  return  on  attachment  should  be  made 109 

return  on  is  evidence  of  what 109 

return  on  may  be  amended,   when 109 

of  injunction,  how  ser\'ed 158 

of  habeas  corpus,  how  served 102 

return  on 163 

of  mandamus 165 

of  certiorari 161 


INDEX   OF   FOBMS.  459 


i:ndex  of  foems. 


VO.  FAel. 


AUDITOR— 

transfer  and  index  books 233 


161     389 


BUSINESS  FORMS— 

promissory  note 

promissory  note  (another  form) 1G2  389 

promissory  note,  with  attorneys  fees 1(53  389 

contract   note ^^4  389 

draft 1C5  390 

warranty 106  390 

acknowledgement   of  deed 1G7  390 

quit  claim  deed ^^>^  391 

mortgage,  short  form ^2^  ^^^ 

mortgage,  with  stipulation 1^0  392 

chattel   mortgage 1^1  39.5 

satisfaction    of  mortgage 172  394 

title  bond ^-j  oo^ 

power  of  attorney I'^f  395 


lease 


175     395 


assignment  of  written   instrument 176  396 

con'.ract  for  sale  of  land 1^7  396 

acknowledgement   by   attorney 178  397 

petition  to  establish,  vacate,  or  alter  highway 179  397 

highway    bond ISO  398 

official  bond  and  oath l''^l  398 

account  between  road  supervisor  and  district 182  399 

list  of  non-resident  land  on  which  road  taxes  are  due 183  400 

road  supervisors'  receipt I"'* 


oath 


400 


CLERK- 

official  bond '       -" 


2       21 


approval  of  official  bond 3  21 

appointment  of  deputy      *  22 

approval  of  appointment  of  deputy 23 

revocation  of  appointment ^  23 

record  entry,  on  organization  of  court    . J  28 

in  criminal  cause,  plea  of  guilty 6  30 

in  criminal  cause  tried  by  jury 7  31 

in  civil  cause  tried  by  tiic  court  ....        8  32 

entry,  judgment  on  note  and  decree  of  foreclosure 9  32 

entry  of  default,  judgment  and  decree "^  33 

entry  of  delault ,',  -Q 

entry  on  re-taxation  of  costs '-  '^j 

order  for  security  for  costs '•'  35 

attachment 1  *  35 

default  of  note  by  two  m.nkers ^•>  35 

license  of  attorney '^  3^ 

of  decree  on  counter-claim ''  37 


460  INDEX   OP  FORMS. 

CLERK— Continued— 

entry  on  partition  of  lands 18  38 

probate  of  will 19  40 

of  judgment  by  confession  in  vacation - 20  41 

oath  of  juror  to  be  excused 21  42 

oatli  to  juror  for   remission  of  fine 22  42 

oath  as  to  qualification  of  grand  jury 23  42 

oath  to  foreman  of  grand  jury 24  43 

other  grand  jurors 25  43 

oath  on  challenge  to  panel 26  43 

oath  to  trial  jurors  as  to  qualification 27  43 

trial  jurors 28  43 

witnesses  on  trial 29  43 

several  witnesses 30  44 

interi^retcr "  .    .    .  31  44 

bailiff  in  charge  of  jury 32  44 

trial  jury S3  44 

on  retiring  with  grand  jury 34  44 

attorneys 35  44 

stay  bond  ....        36  49 

justification  of  sureties 37  60 

execution  for  money 38  60 

special  execution 39  61 

writ  of  certiorari 40  51 

attachnent  bond 41  63 

attachment  writ 42  63 

replevin  bond 43  64 

replevin  writ 44  65 

injunction  bond 45  55 

injunction  writ 46  66 

commission  to  take  deposition 47  69 

cross-interrogatories 48  63 

minute  of  foreclosure 49  64 

satisfaction  of  judgment 60  64 

certificate  of  record 61  66 

supersedeas  bond 52  66 

fee  bill  execution 53  68 

bench  warrant 54  69 

writ  of  attachment  for  contempt 65  70 

venire  for  jurors 56  70 

order  for  discharge  of  defendant 170 

CORONER— 

warrant  for  jury 312 

oath  to  jury ' 312 

verdict  of  jury 312 

warrant  to  officer 125  315 

finding  in  case  of  murder 126  315 

suicide 127  316 

drowning  by  accident 128  316 

marks  of  violence 129  316 

finding  in  case  of  infant 130  316 

natural  death 131  317 

for  taking  testimony  before  coroner 132  317 

certificate  of  coroner 133  318 

NOTARY  PUBLIC— 

petition  for  appointment 134  323 

bond  of  notary 135  323 

protest  of  note  for  non-payment 136  328 

protest  of  note  payable  at  bank 137  328 

protest  of  note  or  bill 138  329 

common  form  of  protest 139  329 

notice  of  protest  for  non-acceptance  .• 140  330 

notice  of  protest  for  non-payment  of  note 141  330 

notice  of  protest,  common  form 142  330 


INDEX   OF   FOEMS.  461 

RECORDER— 

certificate  of  record 118  279 

abstract  of  title I 119  280 

SHERIFF 

return  of  personal  service 57  81 

admission  of  service 58  82 

return  of  service  on  firm 59  82 

by  copy 60  83 

where  county  is  defendant 61  83 

of  service  on  railroad  corporation 62  84 

municipal  corporation 63  84 

a  minor 64  86 

where  defendant  is  insane 65  86 

service  cannot  be  made 66  86 

notice  of  garnishment 67  97 

direction  to  sheriff  to  take  answer  of  garnishee 68  98 

question  to  garnishee 69  98 

delivery  bond 70  101 

approval  of  delivery  bond 71  102 

delivery  bond  on  claim  of  property- 72  102 

summons  to  appraisers  of  attached  property 73  103 

oath  to  appraisers  of  attached  property 74  103 

report  of  appraisers 75  103 

notice  of  appraisement  to  attachment  defendant 76  104 

report  of  jury  for  sale  of  property  .    .     • 77  105 

consent  of  defendant  to  sale 78  106 

return  to  attachment  writ 79  107 

indemnifymg  bond 80  118 

approval  of  bond 81  119 

notice  of  sale  by  sheriff 82  129 

notice  to  defendant  of  levy 83  131 

oath  to  appraisers  of  property  under  execution 84  132 

appraisement  and  return  on  personal  property 85  132 

appraisement  of  equitable  interest,  and  oath 86  133 

redemption  certificate 87  135 

sheriffs  deed 88  139 

indorsement  of  levy  on  execution 89  140 

return  to  execution 90  140 

replevin  bond 91  143 

approval  of  replevin  bond 92  144 

return  to  writ  of  replevin So  144 

return  to  replevin  writ  where  defendant  gives  bond    ...  94  145 

notice  to  raiUv.ay  company  of  condemnation  of  land  .    .    ,         ...  148 

application  to  appoint  appraisers  of  condemned  land 95  150 

notice  of  assessment  of  damages  for  land  condemned 96  151 

appraisers' report  of  condemned  land 97  151 

notice  of  sale  of  mortgaged  property 98  155 

bill  of  sale 99  156 

return  ofservice  of  injunction  writ 100  158 

on  subpoena 101  159 

copy  left 102  160 

of  habeas  corpus 103  163 

warrant  of  arrest 169 

return  where  arrest  made  by  another  party 104  163 

on  service  of  such  warrant 105  178 

oath  of  officer  to  the  return  of  service 106  178 

to  judgment  execution 107  182 

where  defendant  sent  toi)enitentiary 108  182 

warden's  receipt 100  183 

return  on  abatement  of  nuisance 110  183 

calendar  of  prisoners Ill  186 

proclamation  on  opening  court 112  190 

adjournment  of  court ll.t  190 

opening  court  after  adjournment 114  190 


463  INDEX  OF  FORMS. 

SUPERVISORS— 

record  of  proceedings  of 115  205 

highsvay  book 116  208 

record  of  establisliment  of  highway 117  211 

SURVEYOR— 

oath  to  chainmen 120  283 

oath  to  witness  to  establish  corner 121  284 

certificate  of  plat  and  field-notes 122  284 

field-notes   of  township   lines 12.3  300 

sub-division   of    township  .    .    .    .    , 124  301 

TOWNSHIP  COLLECTOR— 

notice  to  tax-payers 156  376 

notice  of  sale  of  property  for  taxes 157  376 

monthly  statement 158  377 

final  statement   of  account 159  377 

affidavit  of  unpaid  taxes IGO  378 

TOWNSHIP  TRUSTEES— 

notice  to  rebuild  fence 143  339 

certificate  of  examination  of  fence 144  339 

value  and  sufficiency  pf  fence 145  340 

in  proceeding  to  locate   partition  fence 146  343 

of  expenses  for  board  of  health 147  347 

notice  of  location  of  drain 148  351 

finding  and  decision  as  to  drain 149  351 

certificate  of  damages  by  trespassing  animals 150  354 

notice  of  sale  of  trespassing  stock 151  345 

TREASURER— 

certificate  of  publication  of  tax  list 245 

tax    deed 249 

accounts  of  different  funds 260 


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IOWA  PROBATE  MANUAL. 


Containing  the  Probate  and  Homestead  Law,  and  that  of  the  Separate  Property  of 
the  Husband  and  Wife,  from  the  text  of  the  Code  of  187.'?;  with  all  the  decisions 
of  the  Supreme  Court,  in  the  Iowa  Reports,  &c.,  up  to  July  1st.  1873,  on  the 
same  topics;  with  a  full  Appendix  of  Probate  Forms,  accompanied  by  a  Chapter 
of  Instructions  for  the  Settlement  of  Estates,  &c,  Also,  a  complete  table  of  all 
the  cases  referred  to  in  the  Iowa  Reports.  Being  a  complete  guide  for  Executors, 
Administrators  and  Guardians  in  the  Settlement  of  Estates.  By  A.  N.  PoRTER, 
of  the  Des  Moines  Bar. 

SUMMARY  OF  CONTENTS. 


Table  of  cases  cited  from  Iowa  Reports. 

CHAPTER  I. 
Definition  of  law  teims  as  used   in  the 
Code. 

CHAPTER  II. 
furisdiction  of  Probate  Courts. 

CHAPTER  III. 
Wills,  Administration,  Foreign  Wills. 

CHAPTER    IV. 
Custodian  Probate- Posthumous  Children 

CHAPTER  V. 
Executors,  Trustees.  Administration. 

CHAPTER  VI. 
Of  the  settlement  of  the  Estate. 

CHAPTER  VII. 
Sale  of  Real  Property. 

CHAPTER  VIII. 
Possession  of  Real  Property. 

CHAPTER  IX. 
Filing  of  Claims. 

CHAPTER  X. 
Payment  of  Claims. 

CHAPTER  XI. 
Legacies — General,  Specific. 
CHAPTER  XII. 
Distribution  of  Property. 

CHAPTER  XIII. 
Descent  of  Property.     AdTzncement. 

CHAPTER  XIV. 
Elscheat — Illegitimate  Children. 

CHAPTER  XV. 
The  Accounting  of  the  Executor. 

CHAPTER  XVI. 
Records  of  the  Clerk — Compensation  of 
Executor. 

CHAPTER  XVII. 
Removal  of  the  Executor. 


CHAPTER    XVIII. 
Exemption  Laws. 

CHAPTER    XIX. 
Parties  to  An  Action — Judgment  against 
Executor. 

CHAPTER    XX. 
Evidence — Where  Executor  is  a  Party. 

CHAPTIR     XXI. 
Recovery    of    Real    Property — Destruc- 
tion of  a  Wiil. 

CHAPTER   XXII. 
Guardianship  of  Minors — Contracts  with. 

CHAPTER    XXI II. 
Guardianship — lis  duties. 

CHAPTER    XXIV. 
Guardian's  Sale  of  Real   Property. 

CHAPIER    XXV. 
Foreign  Guardians. 

CHAPTER    XXVI. 
Minors — Parlies  to  an  action. 

CHAPTER    XXVII. 
Homestead — What  constitutes  one. 

CHAPTER    XXVIII. 
Homestead — It  m.iy  contain  what. 

CHAPIER    XXIX. 
Location  of — Descent  of 

CHAPTER    XXX. 
Husband  and  Wife- -Separate  Property. 

CHAPIER    XXXI. 
Addenda — Late    decisions   of    Supreme 
Court. 

CHAPTER    XXXIT. 

Appendix  of  Forms — Probate  and  Guar- 
dian. 

CHAPTER    XXXIII. 
Instructions  for  settlement  of  an  estate 
and  lor  the  use  of  the  forms. 


This  Work  is  now  Ready  for  Delivery.     It  is  indispensible  to  the  Leg.al 
Profession  and  all  persons  having  Probate  business  to  transact  in  Iowa.     Price,  J.i.tlO. 

MILLS  &  CO., 
Law  Book  Puhlishers,  Dcs  Moines,  Iowa. 


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